A 


PRACTICAL    TREATISE 


ON  THE  LAW   RELATING  TO 


THE   SPECIFIC   PERFORMANCE 


CONTRACTS 


BY 


THOMAS     AV.    WATERMAN, 

COUNSELLOR- AT-LA\V. 


XEW   yOEK: 
BAKER,   VOORHIS    &    CO.,   PUBLISHERS, 

63    NASSAU    STREET. 

1881. 


COPYRIGHT,    1881,    BY 
THOMAS   W.    WATERMAN. 


W  3(  3^  c 


PFvEFACE 


A  LONG  while  ago  the  pubhshers  of  these  pages  entered 
into  an  engagement  with  a  prominent  member  of  the  bar 
to  write  a  treatise  on  the  Specific  Performance  of  Con- 
tracts, but  his  subsequent  call  to  a  different  field  of  labor 
compelled  him  to  relinquish  the  undertaking,  and  the  au- 
thor then,  by  request,  took  it  up.  At  that  time  this  im- 
portant subject  had  not  been  separately  treated  by  any 
American  writer ;  and,  though  it  occupied  a  place  in 
books  on  the  general  system  of  Equity  Jurisprudence,  yet, 
to  obtain  detailed  information  in  relation  to  it,  resort  was 
necessarily  had  to  English  works,  wiiich,  of  course,  did  not 
always  present  the  law  relating  to  the  specific  enforcement 
of  contracts  precisely  as  it  is  administered  by  the  courts  of 
this  country.  The  reports  of  every  State  in  the  Union 
bear  abundant  testimony  to  the  practical  nature  and  fre- 
quent recurrence  between  litigants  of  the  topics  herein  dis- 
cussed ;  and  it  is  the  object  of  the  present  volume  to  give 
the  result  of  our  legal  decisions  in  connection  with  those 
of  Great  Britain  in  establishing  rules  governing  such  suits. 

In  the  treatment  of  the  subject  the  prominent  endeavor 
has  been  to  present  practical  considerations,  rather  than  such 
as  are  merely  theoretical  or  speculative,  and  to  avoid  com- 
plexity ;  the  further  aim  being  at  precision  and  clearness  of 
language,  and  simplicity  and  convenience  of  arrangement. 
A  general  statement  of  a  principle  is  followed  by  exam- 
ples in  the  form  of  a  concise  and  brief  outline  of  legal  de- 
cisions sustaining  the  proposition,  wdiich  experience  has 
shown  is  more  satisfactory  than  the  authoritative  enuncia- 
tion of  the  author  simply  sustained  by  citations,  especially  to 
lawyers  wdio  do  not  at  all  times  have  access  to  extensive  libra- 
ries.   With  some  modifications  the  arrangement  is  similar  to 


776922 


ii  PREFACE. 

that  of  Mr.  l^y's  admimblc  work  on  Specific  Performance, 
which    is  simple  and  practical — that   is,  the  treatise  is  di- 
vided  into  four  books,  as  follows:    ist,  Of  the  ytirisdic- 
tion  ;   2d,   The  Mode  of  Exercising  the  Jicrisdiction  ;  3d, 
Defences;     4th,    Matters    Incident    to    the    Jurisdiction. 
Book  I.  embraces  the  definition  and  nature  of  the  subject, 
and  a  general  enumeration  of  the  contracts  which  are  capa- 
ble of  being  specifically  enforced  ;   Book  II.,  the  parties  to 
the  suit,  pleadings,  injunction,  and  writ  of  ne  exeat ;  Book 
III.,  the  several  grounds  on  which  a  decree  may  be  success- 
fully resisted ;  Book  IV.,  compensation  and  damages.  A  great 
variety  of  questions,  many  of  them  deeply  interesting,  are 
treated  in  the  text,  and  it  is  believed  that  they  involve  all 
of  the  general   principles  appertaining  to    this   particular 
branch  of  the  law.     The  citations  from  both  the  English 
and  American  reports,  from  the  earliest  period  to  a  date 
near  the  time  of  publication,  are  numerous,  and  designed 
to  embrace  all  the  decisions  required  for  the  most  ami)le 
illustration.     The    notes,  which  have  been  prepared  with 
care,  and  which  it  is  hoped  will  be  found  serviceable,  give 
explanations  and  facts  in  detail  which  could  not  with  pro- 
priety be  introduced  in  the  text.     Extracts  from  judicial 
opinions  are  seldom  given  in  the  text,  and  never  at  any 
great  length  ;  but  such  as  were  tjiought  to  be  important 
will  be  found  in  the  notes.     To  facilitate  reference,  be- 
sides the  sub-divisions  placed  at  the  commencement  of  the 
chapters,  each  section  has  a  special  heading,  and  there  is  a 
full  index.     The  author  has  given  to  the  work  a  great  deal 
of  time  and  study,  and  he  trusts  that  it  may  be  found  of 
practical  utility. 

BiNGHAMTON,  N.  Y.,  April  ^o,  1881. 


CONTENTS. 


BOOK    I 


OF  THE  JURISDICTION, 


CHAPTER  I. 

PAGE 

DEFINITION   AND   NATURE, i 


CHAPTER   II. 

CONTRACTS    WHICH    MAY    OR    MAY    NOT    BE    SUB- 
JECTS   OF    THE    JURISDICTION,      ....         9 


BOOK    II. 

JURISDICTION,    HOW   EXERCISED. 

CHAPTER  I. 
WFIO    MAY    SUE    OR    BE    SUED 73 


PAGE 


CHAPTER   II. 
PLEADINGS, 

CHAPTER  III 
INJUNCTION, 


CHAPTER   IV 
WRIT   OF   NE    EXEAT,  . 


116 


^33 


154 


IV  CONTENTS. 

IJOOK     III. 

DEFENCES. 
CHAPTER     I . 

PACK 

INCAPACITY    OF    PARTY, 158 

CHAPTER    II. 
NON-CONX'LUSION   OF   CONTRACT,.         .         .         .         .170 

CHAPTER  III. 

y  INCOMPLETENESS,     UNCERTAINTY,     AND     UNFAIR- 
NESS   OF    CONTRACT,  ......     184 

CHAPTER   IV. 
HARDSHIP    OF   CONTRACT, 223 

CHAPTER    V. 

y' INADEQUACY,    ABSENCE,     OR     FAILURE     OF     CON- 
SIDERATION,   .237 

CHAPTER  VI. 
v/CONTR.ACT    NOT    MUTUAL, 260 

CHAPTER  VII. 
ILLECALITY    OF    CONTRACT, 275 

CHAPTER   VIII. 
CONTRACT    ULTRA    VIRES, 291 

CHAPTER    IX. 
STATUTE    OF    FRAUDS, 304 

CHAPTER    X. 
MISREPRESENTATION,   FRAUD,    OR    MISTAKE.  .         •     400 


CONTENTS.  V 

CHAPTER   XI. 

/  PACE 

INABILITY     OF     COURT    TO     ENFORCE      PART     OF 

CONTRACT, 522 

CHAPTER    XII. 
DEFECT    IN    SUBJECT    OF    CONTRACT,  .         .         .         .533 

CHAPTER    XIII. 
ABSENCE    OR    INSUFFICIENCY    OF    TITLE,  .         .         .541 

CHAPTER    XIV. 
•^NON-PERFORMANCE    OF    PLAINTIFF,       .         .         .         .575 

CHAPTER    XV. 

i/ACTS    OF  PLAINTIFF    DISENTITLING    HIM   TO    PER- 
FORMANCE,      619 

CHAPTER    XVI. 
LAPSE    OF    TIME,    . 626 

CHAPTER  XVII. 
DETERMINATION    OF    CONTRACT,   .         .         .         .         •     680 


BOOK    IV. 

MATTERS  INCIDENT  TO  THE  JURISDICTION. 

CHAPTER    I. 
COMPENSATION    AND   DAMAGES,      .         .  .699 


CASES    CITED. 


[The    Fig^ures    Refer    to   the    Pages.] 


Abbey  v.  Dewey,  439. 
Abbott  V.  Draper,  369. 

V.  Dunivin,  123. 

V.  L'Hommedieu,  7,  629. 

V.  Shepard,  179. 
Abeel  v.  Radcliff,  314. 
Abell  V.  Calderwood,  353. 

V.  Williams,  681. 
Abinger  (Lord)  v.  Askton,  37,  69. 
Acker  v.  Phoenix,  248. 
Ackerman  v.  Ackerman,  390,  750, 
Adams  v.  Blackwell  R.R.  Co.,  61. 

V.  Brooke,  188. 

V.  P'ullam,  369. 

V.  Lindsell,  179. 

V.  M'Millan,  314,  334. 

V.  Nicholas,  684. 

V.  Patrick,  129. 

V.  Robertson,  507. 

V.  Rockwell,  379. 

V.  Townsend,  354. 

V.  Weare,  230. 

V.  Whitcomb,  154. 

V.  Winne,  472. 
Adamson  v.  Evitt,  402. 
Aday  v.  Echols,  199,  360,  734,  748. 
Adderley  v.  Dixon,  18,  26. 
Addington  v.  McDonnell,  229,  663. 
Affleck  2/.  Affleck,  520. 
Agar  V.  Macklew,  58,  192. 
Agard  v.  Valencia,  79,  199. 
Ahearne  v.  Hogan,  452. 
Ahl  V.  Johnson,  672. 
Aiken  v.  Bruen,  462. 
Aikin  v.  Lloyd,  66. 
Ainslie  v.  Medlicott,  420. 
Aitkin  v.  Young,  373. 
Akhurst  v.  Jackson,  259. 
Albea  v.  Griffin,  353,  384. 
Albert  ■z^.  Winn,  130. 
Albrecht  v.  Sussmaim,  284. 
Aldborough  (Earl  of)  v.  Trye,  236. 
Aldrich  v.  Putney,  688. 
Aldridge  v.  Dana,  455. 


Alexander  v.  Ghiselin,  81. 
V.  Godwin,  627. 
V.  Hoffinan,  660. 
V.  Mills,  551. 
V.  Newton,  492,  499, 
V.  Tams,  349. 
Alger  V.  Thatcher,  281. 
Allegany  City  v.  McClurkan,  301. 
Allen  v.  Atkinson,  560,  561,  604,  663. 
V.  Beal,  12. 
V.  Bennet,  309,  323. 
V.  Booker,  354. 
V.  Burke,  504. 
V.  Cerro  Gordo,  266. 
V.  Chambers,  122,  352,  367. 
V.  Hilton,  661. 
V.  Hopson,  442. 
V.  Simons,  460. 
V.  Watson,  60. 
V.  Webb,  199,  363,  694. 
Allen's  Estate,  370,  378. 
Allerton  v.  Johnson,  365. 
Allison  V.  Monkwearmouth,  44. 
Allison  V.  Shilling,  97,  721. 
Alsopp  V.  Patten,  366. 
Alvanley  v.  Kinnaird,  484,  488. 
Ambrose  v.  Keller,  16,  673. 
American  Land  Co.  v.  Grady,  733. 
Amsinck  v.  Barklay,  157. 
Anderson  v.  Bacon,  514. 

V.  Chick,  334,  356,  374. 
V.  Ellsworth,  444. 
V.  Fry,  662, 
V.  Hall,  431. 
V.  Harold,  325. 
V.  Higgins,  573. 
V.  Lewis,  48. 
V.  Simpson,  374. 
V.  White,  684. 
Andrews  v.  Andrews,  224,  247. 
V.  Bell,  257,  663. 
V.  Brown,  731. 
V.  Essex  Ins.  Co.,  484,  507, 
V.  Scotton,  256. 


Vlll 


CASES    CITED. 


[The  figures  refer 
to  the  pages.] 


Andrews  v.  Sullivan,  644. 

Annan  v.  Merritt,  381,  452. 

Ann  Berta  Lodge  v.  Leverton,  383. 

Annesley  t'.  Muygridge,  137. 

Anon,  156,  164,  720. 

Anon  V.  Walford,  79,  83,  191. 

Anshutz's  Appeal,  89. 

Anson  v.  Tovvgood,  255. 

Anthony  z'.  Leftwitcli,  7,  121,  217,  376, 

455- 
Archbold  v.  Cominisioners  of  Charita- 
ble Bequests,  443. 
Archer  v.  Hudson,  429. 
Archer  %>.  McCray,  447. 
Argenbright  v.  Campbell,  399. 
Arglasse  v.  Muschamp,  65. 
ArgTjello  V.  Edinger,  350. 
Armistead  v.  Ward.  145. 
Armstrong  v.  Courtney,  148. 

V.  Gilchrist,  5. 

V.  Kaltenhorn,  376. 

V.  Pierson,  644,  645,  649. 

V.  Toler,  279,  288. 

V.  Wyandotte    Bridge    Co., 

595- 
Arnold  v.  Nichols,  467. 
Arnot  V.  Biscoe,  564. 

V.  Pittston  &  Elmira  Coal  Co., 

530- 
Arnoux  v.  Romans,  694. 
Artcher  v.  Zeh,  394. 
Arthur  v.  Arthur,  472. 
Artz  V.  Grove,  130,  345,  398. 
Arundell  (Lady)  v.  Phipps,  22. 
Ash  V.  Daggy,  7,  350. 
Ashcraft  v.  Browntield,  205. 
Ashton  V.  Corrigan,  25. 

V.  Wood,  694,  702. 
Ashurst  V.  Mill,  492. 
Askew  V.  Millington,  58. 
Aston  V.  Robinson,  8. 
Astor  V.  Lamoreaux,  369. 
Athy  V.  McHenry,  495. 
Atkinson  v.  Jackson,  3S8. 
V.  Ritchie,  275. 
V.  Smith,  529. 
Atlanta,  etc.,  R.R.  Co.  v.  Speer,  70. 
Atlantic  Delaine  Co.  v.  Jr.mes,  445. 
Atlas  Bank  v.  Nahant  Bank,  279. 

Attwood  2^.  ,  55. 

V.  Barham,  134. 
V.  Cobb,  321. 
V.  Small,  422,  425,  468. 
Atty.  Genl.  v.  Briggs,  147. 

V.  Christ  Church,  744. 
V.  Corp.  of  Norwich,  299. 
V.  Day,  272,  397,   536,  701, 

711. 
V.  Manchester  &  Leeds  R.R. 
Co.,  148. 


Atty.  Genl.  v.  Mucklow,  155. 
V.  Parnther,  160. 
V.    Sittingbourne  &    Sheer- 

ness  R.R.  Co.,  600. 
V.  Sitwell,  510. 
V.  Sothon,  453. 
Aubin  V.  Holt,  45.  276. 
Aubuchon  v.  Bender,  455. 
Audenreid  v.  Philadelphia  &  Reading- 

R.R.  Co..  141. 
Austin  V.  Ewell,  497. 
Auter  V.  Miller,  7,  130. 
Aveline  v.  Whisson,  326. 
Averill  v.  Hedge,  179,  180. 

V.  Wilson,  560. 
Avery  v.  Griffin,  94. 

V.  Longford,  10. 
Ayers  v.  Baumgarten,  237. 

V.  Hewitt,  457. 
Ayles  V.  Cox,  536. 
Aylett  V.  Ashton,  92,  94,  160,  716. 
Ayliffe  v.  Tracy,  181. 
Aynsley  v.  Glover,  6. 


Babcock  v.  Case,  437. 

V.  Eckltr,  4M. 
Babier  v.  Babier,  8,  62. 
Backhouse  v.  Crosb\,  270. 
V.  Mohan,  685. 
Backus'  Appeal,  3,  62. 
Bacon  v.  Bronson,  439,  442. 

V.  Simpson,  537. 
Bacot  V.  Wetmore,  74. 
Baden  v.  Pembroke   (Countess  of),  85, 

269. 
Baglehole  -v.  Walters,  409,  540. 
Bagley  v.  Clark,  680. 
V.  Peddie,  29. 
Bagshawe   v.   Eastern    Counties   R.R. 

Co.,  299. 
Bailey  v.  Bailey,  507 

V.  Collett,  745. 

V.  James,  717. 

V.  Ogden,  325,  329. 

V.  Rider,  66. 

V.  Wilson,  55,  56. 
Bain  v.  Bickett.  92. 
Bainl)ridge  v.  Kinnaird,     16. 
Baird  v.  Baird,  660. 
Baker  v.  Bradley,  289,  443. 

V.  Carson,  353,  384. 

V.  Cox,  430. 

V.  Glass,  187,  192. 

V.  Hathav.'ay,  94,  123. 

V.  HoUobaugh.  397. 

V.  Howell,  450. 

V.  Lever,  468. 

V.  Thompsoii,  255. 

V.  White,  283. 


[The  figures  refer 
to  the  pages.] 


CASES    CITED. 


IX 


Baldey  v.  Parker,  527. 
Baldwin  v.  Lowe,  89. 

V.  Munn,  743. 
V.  Salter,  577. 

V.  Society  for  Diffusing  Use- 
ful Knowledge,  40,  143. 
V.  Vanvorst,  635. 
V.  Williams,  367. 
Ball  V.  Cogs,  39. 

V.  Storie,  487. 
Ballard  v.  Schutt,  745. 
V.  Walker,  641. 
V,  Ward,  249,  373. 
V.  Way,  538. 
Ballingall  v.  Bradley,  318. 
Ballinger  v.  Edwards,  286,  453. 
Bamford  v.  Creasy,  134. 
Bank  of  Augusta  v.  Earle,  293. 
Bank  of  British  North  America  (matter 

oQ,  113- 
Bank  of  Columbia  v.  Hagner,  609. 

V.  Patterson,  331. 
Bank  of  Michigan  v.  Niles,  296. 
Bank  of  South  Carolina  v.  Hammond, 

275. 
Bank  of  U.  S.  v.  Dandridge,  292. 
V.  Daniel,  471. 
V.  Kiting,  289. 
Banks  v.  Poitiaux,  296. 
Barb  v.  Cole,  723. 
Bargent  v.  Thompson,  134. 
Barickman  v.  Kuykendall,  316,  370. 
Barker  %>.  Cox,  721. 
V.  Hill,  85. 
V.  Hodgson,  275. 
Barkley  v.  Barkley,  26. 
Barksdale  v.  Payne,  8,  410. 
Barkworth   v.    Young,    105,    122,   128, 

168,  308,  397. 
Barlow  v.  Scott,  732. 
Barnard  v.  Flinn,  345. 

V.  Lee,  627,  631,  652,  657,  672. 
V.  Macy,  87. 
V.  Young,  286. 
Barnes  v.  Barnes,  12. 

V.  Brown,  367,  454. 
V.  Pennell,  425. 
V.  Teague,  353,  399. 
V.  Wood,  89,  570,  701,  712,  721. 
Barnet  v.  Dougherty,  349. 
Barnett  v.  Higgins,  563. 
V.  Stanton,  436. 
Barney  v.  Patterson,  335. 
Barnwell  v.  Harris,  556. 
Barr  v.  Gibson,  255. 
V.  Hatch,  520. 
V.  Lapsley,  20. 
Barrett  7/.  Blagrave,  137,  146. 

V.  Mendenhall,  163,  734. 
V.  Ring,  218. 


Barrett  v.  Spratt,  224. 
Barrington  v.  Horn,  164. 
Barron  v.  Alexander,  436. 
V.  Barron,  5  \,  54. 
V.  Frink.  607. 
Barrow  z/.  Barrow,  492. 
V.  Bispham,  553. 
V.  Richards,  146,  599. 
Barry  v.  Barrymore  (Lord),  331. 

V.  Coomlie,  201,  323,  326,  399. 
V.  Croskey,  425. 
V.  Law,  325. 
Barstow  v.  Gray,  323. 

V.  Kilvington,  507, 
Bartholomew  v.  Leach,  329. 
Bartle  v.  Coleman,  281. 
Bartlett  v.  Blanton,  545. 
V.  Judd,  512. 
V.  Pickersgiil,  349. 
V.  Purn(dl,  335. 
V.  Salmon,  418,  419,  420. 
V.  Vinor,  285. 
V.  Wheeler,  395. 
Barton  v.  Vanhuythuysen,  458. 
Barwick  v.  English  joint  Stock  Bank, 

418. 
Bascomb  v.  Beck  vjth,  408. 
Basevi  v.  Serra,  589. 
Bashore  v.  Whisler,  256. 
Baskett  v.  Cafe,  130. 
Bass  V.  Gilliland,  124,  674,  712. 
Bassler  7^  NiesU,  369. 
Bast  V.  Alford,  123. 
Bateman  v.  Boynton,  518. 

V.  Murray,  47. 
Bates  V.  Delavan,  54?,  574. 
V.  Moore,  395. 
V.  V\  heeler,  i  23. 
Bathurst  (Lord)  v.  Burden,  142. 
Battle  V.  Rochester  City  Bank,  686. 
Baumann  %.  James,  313. 
Bautz  V.  Kuworth,  530. 
Baxendale  v.  Scale,  221,  222,  488. 
Baxter  z/.  Burtield,  115. 
V.  Connoly,  43. 
%>.  Lewis,  613. 
Bay  7>.  Baskin,  380. 
Bayley  v.  Coip.  of  Leominster,  46. 

V.  Merrel,  436. 
Baylor  v.  Com.,  48,  249. 
Bayly  v.  Tyrrell,  102. 
Baynham  v.  Guy's  Hospital,  46,  47,  627. 
Beach  v.  Dyer,  7,  656. 
Beal  V.  Warren,  462. 
Beales  v.  Rokeby  (Lord),  90. 
Beaman  v.  Buck,  353. 
Bean  v.  Valle,  373. 
Beard  v.  Bingham,  286. 
V.  Dennis,  44. 
V.  Linthicum,  260,  363. 


CASES    CITED. 


[The  figures  refer 
to  the  pages.] 


Bearden  v.  Wood,  576,  600. 
Beardmer  v.  London  &  Northwestern 

R.R.  Co.,  580. 
Beardsley  7/.  Duntley,  370,  411. 
V.  Knight,  475,  510. 
Beardsley  Scythe  Co.  v,  Foster,  74. 
Beasley  v.  Maggrath,  454. 
Beatson  v.   Nicholson,    130,   131,   180, 

593- 
Beatty  v.  Kurtz,  84. 
Beaufort  (Duke  oO  v.  Glynn,  6,  137. 

V.  Neeld,  481. 
Beaumont  v.  Dukes,  407,  579. 

V.  Reeve,  285. 
Beck  V.  Allison,  37. 
Beckley  v.  Newland,  49. 
Beckwith  v.  Cheever,  180. 

V.  Kouns,  545. 
Bedford  (Duke  ot)  v.  Trustees  of  Brit- 
ish Museum,  233. 
Beebe  v.  Dowd,  380,  600. 

•u.  Young,  417. 
Beecher  v.  Beecher,  31. 

V.  Conradt,  613. 
Beed  v.  Bland  ford,  695. 
Beert/.  London  &  Paris  Hotel  Co.,  190, 
Beers  v.  Botsford,  444. 
Beeston  v.  Stutely,  163,  274. 
Beioley  z^.  Carter,  546,  552. 
Belcher  7/.  Belcher,  441. 
-u.  Vardon,  286. 
Belden  v.  Carter,  51. 
Bell  V.  Holtby,  546. 

V.  Howard,  210,  267,  685. 
v.  Steele,  471. 

V.  Thompson,  123,  167,  609,  707. 
7/.  Warren,  188,  586. 
Bellamy  v.  Liversidge,  86. 

V.  Ragsdaie,  615,  674. 
"d.  Sabine,  455. 
Bellas  V.  Hays,  602,  660. 
V.  M'Carthy,  256. 
Bellew  V.  Russell,  469. 
Bellinger  v.  Kitts,  651. 
Belloat  V.  Morse,  118. 
Bellows  V.  Stone,  470,  510. 
Bellringer  v.  Blagrave,  218,  568. 
Bell's  Appeal,  648. 
Belmanno  v.  Lumley,  716. 
Belworth  v.  Hassell,  711. 
Beman  v.  Rufford,  102,  299. 
Benbow  v.  Townsend,  339. 
Benedict  v.  Benedict,  386. 

V.  Lynch,  260,  267,  635,  656. 
Benfield  v.  Solomons,  286. 
Bennett  v.  Abrams,  26,  380. 
V.  Clough,  276. 
V.  Fowler,  272,  572. 
V.  Judson,  417. 
V.  Smith,  6. 


Bennett  v.  Vade,  160. 

V.  Welch,  663,  676. 
Benson  v.  Lamb,  640. 
V.  Tilton,  670. 
Bentley  v.  Craven,  549. 

V.  Whittemore,  471,  474. 
Benton  v.  Shreeve,  245. 
Berkley  v.  Hardy,  74. 
Bermingham  v.  Sheridan,  25. 
Bernard  v.  Meara,  148. 
Berry  v.  Cox,  92. 

V.  Van  Winkle,  39. 
V.  Whitney,  425,  449,  507. 
v.  Young,  627. 
Best  V.  Stone,  491,  700. 
Bethel  v.  Hawkins,  174. 
Bettesworth  v.  Dean  and  Chapter  of 

St.  Paul,  II,  166,  276. 
Bettle  V.  Wilson,  54. 
Betts  V.  Gunn,  484. 
Beyer  v.  Marks,  706. 
Bidden  v.  Leader,  285. 
Biddle  v.  Ramsey,  59. 
Bidwell  V.  Astor  Mu.  Ins.  Co.,  519. 
Bigg  V.  Strong,  332. 
Bill  V.  Holtby,  552. 
Billing  V.  Southee,  289,  443. 
Billingslea  v.  Ward,  357,  398. 
Billington  v.  Welsh,  369. 
Bingham  v.  Bingham,  483. 
Bmks  V.  Rokeby  (Lord),  708,  746. 
Binnington  v.  Wallis,  285. 
Binns  v.  Mount,  606. 
Birce  v.  Bletchley,  399. 
Birch  V.  Joy,  744. 

V.  Smith,  41. 
Birchard  v.  Cheever,  66. 
Birchett  v.  Boiling,  35. 
Bird  V.  Aitken,  459. 
V,  Boulter,  334. 
V,  Hall,  104. 
V.  Higginson,  386. 
Birdsall  v.  VValdron,  541,  608. 
Bishop  V.  Busse,  682. 

V.  Newton,  562. 
Bissell  V.  Farmer's,  etc..  Bank,  74. 
•z/.  Heyward,  600. 
V.  Mich.   Southern   and  North- 
ern Ind.    R.R.  Co.,   296, 
300,  302. 
V.  Terry,  331. 
Blachford  v.  Kirkpatrick,  374. 
Black  V.  Black,  366. 
V.  Cord,  247. 
Blackburn  v.  Gregson,  27. 
Blackett  v.  Bates,  61,  71,  264. 
Blackie  v.  Clark,  518. 
Blacklow  V.  Laws,  559. 
Blackmore  v.  Shelby,  289. 
Blackner  v.  Phillips,  604. 


[The  figures  refer 
to  the  pages. J 


CASES    CITED. 


XI 


Blackney  v.  Ferguson,  381. 
Blackwilder  v.  Loveless,  6,  212. 
Blagden   v.  Bradbear,    130,    195,    314, 

.399- 
Blain  v.  Agar,  406. 
Blair  v.  Bromley,  419,  443,  467. 
V.  Rankin,  544. 
V.  Smith,  379. 
Blaisdell  v.  Cowell,  443. 
Blake  v.  Cole,  394. 
Blakeslee  v.  Blakeslee,  378. 
Blanchard  v.   Detroit,  etc.,    R.R.,    70, 
200,  314. 

V.  Hilliard,  640. 

V.  McDougal,  363,  366. 

V.  Moore,  503. 

V.  Noyes,  55. 

V.  Williamson,  628, 
Blanks  v.  Walker,  563. 
Blanton  v.  Knox,  395. 
Blaydes  v.  Calvert,  1 56. 
Bleakley?/.  Smith,  188,  325. 
Bleecker  v.  Franklin,  323. 
Blennerhasset  v.  Day,  467,  468. 
Blew  V.  McClelland,  746. 
Blight  V.  Banks,  5. 
Blodgett  V.  Hiidreth,  342,  366. 

V.  Hobart,  501. 
Blore  V.  Sutton,  195,  330,  357. 
Blosse  V.  Clammorris  (Lord),  550. 
Blount  V.  Blount,  744. 
V.  Winter,  55. 
Bluck  V.  Gombertz,  327. 
Blundell  v,  Brettargh,  58,  62,  192,  193. 
Blunt  V.  Tomlin,  382. 
Boardman  v.  Ford,  320. 

V.  Mostyn,  134,  624. 

V.  Spooner,  326,  335. 
Bodine  v.  Glading,  260. 
Boehm  v.  Wood,  117,  156,  632. 
Began  V.  Camp,  87,  1 20. 

V,  Daughdrill,  7,  536. 
Boisblanc  v.  Markey,  574. 
Bold  V.  Hutchinson,  181. 
Bolingbroke's  Case,  272. 
Bomier  z^.  Caldwell,  375,  382. 
Bond  V.  Kent,  27. 

V.  Hopkins,  350. 
Bonebright  z*.  Pease,  12. 
Bonesteel  v.  Bonesteel,  156. 
Boney  v.  Holingsworth,  289. 
Bonner  v.  Montgomer)-,  453. 
Bonnet  v.  Sadler,  100, 
Bonnewell  v.  Jenkins,  174. 
Booders  v.  Murphy,  107. 
Boone  v.  Chiles,  74. 

V.  Missouri  Iron  Co.,  576. 
Booten  v.  Scheffer,  238,  257,  647. 
Booth  V.  Booth,  116. 
V.  Hartley,  457. 


Booth  V.  Pollard,  40. 

Boreing  v.  Singery,  442. 

Borell  V.  Dann,  236,  240,  245,  450. 

Bosanquet  v.  Dashvvood,  453. 

Bostock  V.  North    Staffordshire    R.R. 

Co.,  297. 
Boston  &  Maine  R.R.  v.  Bartlett,  172, 

268,  654, 
Boston  Water- Power  Co.  v.  Gray,  521. 
Bostwick  V.  Williams,  353. 
Boswell  V.  Mendham,  545. 
Botsford  V.  Beers,  117,  459. 

V.  Burr,  339,  349,  519. 
V.  Wilson,  573. 
Boucher  v.  Van  Buskirk,  260. 
Bouck  V.  Wilber,  61. 
Boults  V.  Mitchell,  695. 
Bourland  v.  Peoria  (County  ot),  310. 
Boutwell  V.  Foster,  275. 

V.  O'Keefe,  378. 
Bowen  v.  Bowen,  52. 
V.  Evans,  443. 
V.  Irish,  7. 
V.  Jackson,  609. 
V.  Kirwan,  452. 
V.  Waters,  199. 
Bower?/.  Blessing,  172. 

V.  Cooper,  196,  245. 
Bowers  v.  Cator,  129. 
Bowie  V.  Stonestreet,  734. 
Bowles  V.  Woodson,  656. 
Bowman  v.  Bates,  411. 

V.  Bittenbender,  515. 
V.  Cunningham,  199,  209,  279. 
V.  Hyland,  551. 
V.  Irons,  411. 
Bowne  v.  Potter,  560. 
V.  Ritter,  117. 
Bowser  T/.  Cravener,  519. 
Bowyer  v.  Bright,  554,  627,  702.  ; 

Box  V.  Stanford,  338,  353. 
Boyce  v.  Francis,  82. 

V.  McGulloch,  519. 
V.  Prichett,  657,  744. 
V.  Watson,  425. 
Boyd  V.  Graves,  379. 

V.  Schlessinger,  197,  617,  656. 
V.  Stone,  354. 
Boydell  v.  Drummond,  312,  394. 
Boyle  V.  Laird,  126. 

V.  Rowand,  740. 
Boynton  v.  Hazelboom,  404. 

V.  Hubbard,  284. 
Boys  T/.  Ayerst,  178,  179. 
Boyse  v.  Rossborough,  86. 
Bozon  V.  Farlow,  43,  45. 
Brace  v.  Harrington,  95. 

V,  Wehnert,  34. 
Bracken  v.  Hambrick,  204. 

V.  Martin,  663.  _    ^.; 


Xll 


CASES    CITED. 


[The  figures  refer 
to  the  pages.] 


Bradbury  ?'.  White,  475,  483. 
Bradford  v.  Union  I3'k  of  Tennessee, 

128,  484.  514. 
Bradley  v.  Ballard,  302. 

V.  Morgan,  48. 
Brady  v.  Parker,  514. 
Brady's  Appeal,  428,  575. 
Brake  v.  Ballow,  284. 
Brame  v.  McGee,  93. 
Bramley  v.  Alt,  463. 
Branch  ?'.  Tomlinson,  283. 
Brandling  v.  Plummer,  415. 
Brandon  v.  Nesbitt,  284. 
Brasher  7A  Cortlandt,  117. 

V.  Gratz,  219,  573,  597,  654. 
Brassel  %>.  McLemore,  672. 
Braswell  v.  Pope,  576. 
Brawdy  v.  Brawdy,  376. 
Brealey  v.  Collins,  421. 
Breckenridge  v.  Clinkerbeard,  586. 

V.  Hoke,  740. 
Breithaupt  7'.  Thurmond,  197. 
Brennan  v.  Bolton,  360. 
Brewer  v.  Brewer,  355. 

11.  Church,  263. 

V.  Connecticut,  663. 

V.  Herbert,  257. 

V.  Marshall,  599. 

V.  Thorp,  601. 

V.  Wall,  721. 

V.  Wilson,  360,  362. 
Brian  v.  Williamson,  275. 
Bridger  v.  Rice,  217. 
Bridges  v.  Hitchcock,  47. 
V.  Purcell,  386. 
V.  Robinson,  431. 
Brien  7/.  Svvainson,  177. 
Briggs,  ex  parte,  436. 

V.  Wisking,  378. 
Bright  V.  Boyd,  520,  749. 

V.  Bright,  388. 

V.  Eynon,  442. 

V.  North,  299. 
Brillinger  v.  Kitts,  600. 
Brinckerhoff  7/.  Phelps,  723. 
Brink  v.  Morton,  678. 

V.  Steadman,  660. 
Brinker  v.  Brinker,  52. 
Brinkerhoff  7^.  Olp,  604. 
Brinkley  v.  Hance,  212,  454. 
Brisban  v.  Boyd,  179. 
Brisbane  v.  Adams,  463. 
Bristow  V.  Whitmore,  419. 

V.  Wood,  550. 
Broaddus  v.  Ward,  663,  664. 
Broadwater  7A  Darne,  216. 
Broad  well  v.  Broad  well,  27,  403,  514, 
Brock  V.  Cook,  382. 

V.  Hidy,  61 1,  651. 
V.  McNaughtrcy,  443. 


Brockwell's  Case,  419. 
Broddwell  7a  Getman,  395. 
Broderick  v.  Broderick,  402. 
Brodie  v.  St.  Paul,  355. 
Bromier  v.  Caldwell,  645. 
Bromley  v.  Jefferies,  190,  264. 

V.  Smith,  441. 
Bronson  v.  Cahill,  262. 
Brooke  v.  Champernowne,  741. 

7/.  Gurod,  661. 

7/.  Hewitt,  103,  590. 

V.  Mostyn  (Lordj,  476. 
Brooke   (Lord)  7).  Roundthwaite,  421, 

716. 
Brookes  v.  Whitworth  (Lord),  83. 
Brooklyn,  etc.,  R.R.  Co.,  Matter  of,  296. 
Brooks  V.  Hamilton,  420. 

V.  Riding,  718. 

V.  Stoley,  5. 

V.  Wheelock,  347,  352. 
Broome  v.  Monck,  88. 
Brothers  v.  Porter  339. 
Broughton  v.  Broughton,  51. 
V.  Coffer,  363,  446. 
V.  Hutt,  477. 

V.  Manchester  Water  Wks., 
296. 
Brown  v.  Armistead,  471. 

■V.  Bellows,  197,  316,  560,  614. 

V.  Bonner,  457,  492. 

V.  Bucks,  462. 

V.  Cannon,  534. 

V.  Covilland,  553,  629. 

V.  Eaton,  131,  617. 

V.  Finney,  362. 

V.  Gammon,  553. 

V.  Haff,  156,  565,  566. 

V.  Haines,  576. 

V.  Hart,  609. 

V.  Hayes,  123. 

V.  Jones,  383. 

V.  Lampton,  495. 

V.  Montgomery,  409. 

V.  N.  Y.  Central  R.R.  Co.,  170. 

V.  Parish,  719. 

V.  Raindle,  87. 

v.  Rounsavell,  281. 

V.  Tighe,  46,  47. 

V.  Winnismet  Co.,  297. 

V.  Woodworth,  386. 
Browne  7/.  Browne,  51. 
V.  Cross,  468. 

V.  London  Necropolis  Co.,  98. 
V.  Warner,  162. 
Browning  v.  Morris,  279, 
Brown's  Appeal,  139. 
Brua's  Appeal,  453. 
Bruce  v.  Tilson,  599,  610. 
Bruck  V.  Tucker,  14. 
Brueggeman  v.  Jurgensen,  542. 


i[The  figures  refer 
to  the  pages.] 


CASES    CITED. 


Xlll 


Brumfield  v.  Palmer,  642. 
Bruner  tA  Wheaton,  173,  174. 
Bryan  v.  Jamison,  307. 

V.  Read,  576,  617,  704. 
V.  Whistler,  386. 
V.  Wooley,  163. 
Bryant  v.  Boone,  180. 
V.  Booze,  103. 
V.  Busk,  591. 
V.  Lofftus,  566. 
Bryson  v.  Peak,  18. 

V.  Whitehead,  44,  281. 
Bubier  ^'.  Bubier,  352. 
Buchanan  v.  Alvvell,  560. 

V.  Buchanan,  55. 
V.  Lorman,  576. 
V.  Moore,  418. 
V.  U pshaw,  74. 
Buck  V.  Buck,  86. 

V.  Dowley,  353,  504. 
V.  Holloway,  658. 
V.  McCaughtry,  436. 
V.  Pike,  349. 
V.  Sherman,  443. 
V.  Smith,  68. 
V.  Swazey,  25,  339. 
Buckhouse  v.  Crosby,  323,  519,  685. 
Buckland  v.  Hall,  134. 
Buckle  V.  Mitchell,  271,  462,  557. 
Buckmaster  v.  Grundy,  614,  659,  695. 
V.   Harrop,   88,   269,    335, 
355.    356,    364.    368, 
378,  383.  398,  529- 
V.  Thompson,  199. 
Buckner  v.  Calcote,  468. 
Bud  V.  Hall,  728. 
Buell  V.  Miller,  519. 
Buess  V.  Koch,  602. 
Buffington  v.  Gerrish,  106. 
Buffett  V.  Troy  &   Boston  R.R.  Co., 

296. 
JBuford  V.  Caldwell,  417. 

V.  McKee,  T],  247. 
Bull  V.  Bull,  200. 

V.  Talcot,  282. 
Bullitt  V.  Songster,  145. 
Bullock  V.  Adams,  635,  664. 

V.  Irving,  459. 
BumbergerT^.  Clippinger,  549. 
Bumpass  v.  Webb,  521. 
Bunch  V.  Hurst,  241. 
Bunn  V.  Guy,  45. 

V.  Winthrop,  51. 
Bunton  v.  Smith,  360. 
Burchell  v.  Marsh,  521. 
Eurge  V.  Cedar  Rapids   &   Mo.  R.R. 

Co.,  695. 
Burger  v.  Potter,  86. 
Burgess  v.  Wheate,  74. 
Burgin  v.  Burgin,  249. 


Burke  v.  Creditors,  199, 

V.  Seeley,  1 50. 

V.  Serrill,  722. 

"v.  Smyth,  647. 
Burke's  Appeal,  721. 
Burling  v.  King,  248,  577. 
Burlingame  v.  Burlingame,  354. 
Burn  V.  Burn,  507. 
Burnell  v.  Brown,  538,  711. 
Burnes  v.  Pennel,  419. 
Burnham  v.  Walkup,  445. 
Burns  v.  Hamilton,  573. 

V.  Sutherland,  369. 
Burrall  v.  Eames,  66, 
Burroughs  u.  Oakley,  198. 
Burrowes  v.  Locke,  245,  420. 
Burt  V.  Wilson,  398. 
Burtch  V.  Hogge,  240. 
Burton  v.  Blakemore,  443. 
V.  Marshall.  142. 
V.  Wookey,  729. 
Burwell  v.  Jackson,  553,  574. 
Busban  v.  Boyd,  180. 
Busey  v.  Hardin,  256. 
Bush  V.  Bush,  363. 
V.  Cole,  214. 
Bushnell  v.  Bushnell,  155. 
Bussey  2/.  Gant,  126. 
Butch  V.  Lash,  133. 
Butcher  7'.  Stapely,  371. 
Butler  V.  Burleson,  44. 

V.  Galetti,  151. 

V.  Haskell,  241,  449. 

V.  O'Hear,  545,  550. 

TJ.  Powis,  270. 
Butler's  Appeal,  414. 
Butman  v.  Porter,  249,  255. 
Butterfield  v.  Heath,  557. 
Buxton  V.  Hamblen,  275. 

V.  Lister,  10,  23,  33,  199. 
Buys  V.  Eberhardt,  63. 
Byard  v.  Holmes,  415. 
Byers  v.  Aiken,  614. 

V.  Surget,  246,  449. 
Byrd  v.  Odem,  369. 
Byrne  v.  Acton,  218. 

V.  Romaine,  128,  363,  383. 


Caballero  v.  Henty,  711,  715. 

Cabe  V.  Dixon,  578. 

Cabeen  v.  Gordon,  209,  247,  260. 

Cable  V.  Martin,  751. 

Cabot  V.  Cabot,  323. 

V.  Haskins,  325. 
Cadman  v.  Horner,  242,  243,  440. 
Cadogan  v.  Kennett,  458. 
Cadwalader  v.  Price,  546. 
Cadwalader's  Appeal,  662. 
Calcraft  v.  Roebuck,  536,  707,  741. 


XIV 


CASES    CITED. 


[The  figures  refer 
to  the  pages.] 


Caldwell  v.  Carring-ton,  89,  380. 
7'.  Dickinson,  60,  63. 
7'.  Harrison,  282. 
V.  McClelland,  436. 
7A  Tag'gart,  81. 
7/.  Williams,  yj,  247. 
Caledonian  &  Dumbartonshire  Junction 
R.R.  Co.  V.  Magistrates  of  Helens- 
burgh, 107,  no. 
Calhoun  v.  Hays,  379. 
Calkins  v.  Falk,  314. 
Callaghan  7'.  Callagan,  207,  249. 
Callen  v.  Ferguson,  654,  659. 
Caller  7'.  Vivian,  577. 
Calloway  v.  Witherspoon,  216. 
Calverly  7'.  Williams,  485,  490. 
Calvert  v.  Nichols,  669. 
Camden  &   Amboy  R.R.  Co.  v.  Stew- 
art, 204,  318,  357. 
Cameron  %/.  Abbott,  120. 

V.  Ward,  341. 
Camp  V.  Camp,  437. 
Campbell  v.  Campbell,  349. 
V.  Digges,  15. 
V.  Fleming,  696,  697. 
V.  Galbreath,  93. 
V.  Ingilby,  76,  588,  589. 
V.  Ketcham,  159,  217. 
V.  London  &  Brighton  R.R. 

Co.,  633. 
V.  McClenachan,  424,  447. 
V.  Medbury,  560. 
V.  Patterson,  83. 
V.  Spencer,  216,  241. 
Campfell  v.  Hicks,  663. 
Canal  Co.  v.  R.R.  Co.,  172. 
Candler  v.  Carden,  45. 
Candor's  Appeal,  363. 
Canedy  v.  Marcy,  500. 
Canham  v.  Jones,  46. 
Cann  v.  Cann,  703,  707. 
Cannady  v.  Shepard,  224. 
Cannanv.  Bryce,  285. 
Cannel  v.  Buckle,  1 1. 
Canterbury  Aqueduct  Co.  v.  Ensworth, 

3.  402. 
Cantrell  v.  Mobb,  561. 
V.  Rice,  126. 
Capehart  v.  Hall,  123. 

V.  Moon,  481. 
Carbury  v.  Tannehill  492. 
Careleton  v.  Leighton,  51. 
Carew's  Estate  (Matter  of),  465. 
Carey  v.  Smith,  18. 

V.  Stafford,  165. 
Carlisle  v.  Brennan,  122,  373,  399. 

V.  Fleming,  52,  360. 
Carmack  v.  Masterson,  335. 
Carmichael  v.  Vandebur,  404. 
Carne  v.  Mitchell,  162. 


Carolan  v.  Brabazon,  166,  693. 
Carpenter  7/.  Bailey,  550. 
V.  Brown,  614. 
V.  Elliot,  454. 
V.  Mather,  282. 
V.  Mu.  Safety  Ins.  Co.,  20,  39. 
V.  Roe,  461. 
Carpmael  v.  Powis,  482. 
Carr  7/.  Duval,  174,  199. 
V.  Ellison,  46. 

V.  Passaic    Land,    etc.,    Co.,    188, 
206. 
Carrier  v.  Dilworth,  682. 
Carrodus  v.  Sharp,  746. 
Carroll  v.  Wilson,  731. 
Carrolls  v.  Cox,  373. 
Carroway  v.  Anderson,  380. 
Carson  v.  Lucore,  614. 
V.  Murray,  54. 
V.  Percy,  202. 
Carter  v.  Carter,  54,  259. 
V.  Jordan,  66. 
V.  Mills,  79. 

V.  Shorter,  174,  312,  318. 
V.  Ely  (Dean  oi),  634,  691. 
V.  Home,  729. 
V.  Thompson,  125,  609. 
Cartledge  v.  Radbourne,  444. 
Casady  v.  Scallen,  78,  604. 
Casamajor  v.  Strode,  527,  710. 
Case  V.  James,  89. 

V.  Phelps,  461. 
Casey  v.  Allen,  443. 
Cashman  v.  Henry,  93. 
Casler  v.  Thompson,  381. 
Cassady  v.  Woodbury,  191. 
Cass  %>.  Ruddle,  746. 
Casswell  v.  West,  512. 
Castle  V.  Wilkinson,  89,  430,  570,  714, 

721. 
Caswell  V.  Gibbs,  68. 
Cathcart  v.  Robinson,   245,  467,  '477, 

732- 
Cator  V.  Pembroke  (Earl  of),  703. 
Catt  V.  Tourle,  44. 
Cattell  V.  Corrall,  196,  555,  558. 
Causton  v.  Macklew,  557. 
Cavall  V.  Allen,  512. 
Cave  V.  Cork,  87. 

V.  Holford,  472. 
Cavender  v.  Waddingham,  159. 
Cavendish  v.  Cavendish,  549. 
Cazet  V.  Hubble,  117. 
Cecil  7A  Plaistow,  289. 
Chadwell  v.  Winston,  629. 
Chadwick  v.  Maden,  83,  98,  in,  113. 

V.  Piatt,  98. 
Chaires  v.  Brady,  237. 
Chamberlain  v.  Blue,  28. 

V.  McClurg,  55. 


[The  figures  refer 
to  the  pages.] 


CASES    CITED. 


XV 


Chamberlin  v.  Robertson,  266. 
Chambers  v.  Chalmers,  504. 

V.  Lecompte,  118,  372. 

V.  Livermore,  224,  428,  450, 

451.  507.  575- 
V.  Robbins,  136. 
V.  Tulane,  542. 
Chambliss  v.  Smith,  372. 
Chamness  v.  Crutchfield,  503. 
Champion  v.  Brown,  28,  89. 

V.  Plummer,  189,  335. 
Champlin  v.  Champlin,  53. 

V.  Laytin,  478,  479,  480,  482. 

V.  Parish,  85,  90,  337,  398. 
Chance  v.  Beall,  14. 
Chandler  v.  Geraty,  754. 

V.  Neale,  T^. 
Chapin  v.  Butts,  689. 
Chaplin  v.  Scott,  248. 
Chapman  v.  Allen,  499. 

V.  Gibson,  520. 

V.  Lee,  550,  614. 

V.  West,  81. 

V.  Wilbur,  91. 
Chappel  V.  Brockway,  281. 
Charleston   &   Jeffersonville    Turnpike 

Co.  V.  Willey,  295. 
Charlton  v.  Poulter,  42. 
Charnley  v.  Hansbury,  362. 
Charpiot  v.  Sigerson,  360,  375. 
Chartier  v.  Marshall,  735. 
Chase  v.  Hogan,  600. 

V.  Lowell  (City  of),  330. 
Chattock  V.  MuUer,  203. 
Chautauque  County  B'k  v.  Risley,  295. 
Chavany  v.  Sommer,  42. 
Cheale  v.  Ken  ward,  18,  24. 
Cherry  v.  Henning,  325,  395. 
Chesapeake  &  Ohio  Canal  Co.  v.  Young, 

363- 
Cheslyn  v.  Dalby,  60. 
Chesman  v.  Nainby,  148,  281. 
Chess's  Appeal,  125,  613. 
Chester  v.  Dickerson,  340. 
Chester  Glass  Co.  v.  Dewey,  301. 
Chester  z/.  Spargo,  416. 
V.  Urwick,  338. 
Chesterfield  v.  Janssen,  444. 
Chesterman  v.  Mann,  47,  267. 
Chestnut  Hill   Reservoir  Co.  v.  Chase, 

405. 
Chetwood  v.  Brittan,  347. 
Chew  V.  Gillespie,  499. 
Chicago,  etc.,  R.R.  Co.  v.  Dane,  179. 
Chichester  ■?/.  Mclntyre,  62,  190. 
Child  V.  Comber,  129,  308,  398. 

V.  Godolphin,  398. 
Childress  v.  Holland,  659. 
Chiles  V.  Nelson,  180. 
Chillmer  v.  Chilliner,  27,  31,  32. 


Chinnock  v.  Sainsbury,  40,  739. 
Chinock  v.  Marchioness  of  Ely,  126. 
Chipman  v.  Thompson,  595. 
Chippendale,  ex  parte,  301. 
Chissum  v.  Dewes,  43. 
Cholmondeley  v.  Clinton,  118,  660. 
Christian  v.  Cabell,  257,  553,  613,  746. 

V.  Smith,  359. 
Christie  v.  Simpson,  335. 
Chubb  V.  Peckham,  227. 
Church  v.  Steele,  617. 

V.  Sterling,  340. 
Church  of  the  Advent  v.  Farrow,  204, 

225,  319. 
Cincinnati     &    Chicago     R.R.    Co.   v. 

Washburn,  71. 
City  Bank  of  Baltimore  v.  Smith,  29. 
City  Council  v.  Page,  19. 
City,  etc.,  Ins.  Co.  v.  Olmstead,  20. 
Clap  V.  Draper,  196. 
Clapham  v.  Shillito,  403,  432,  440. 
Clark  V.  Barnett,  688. 
V.  Burnham,  320. 
V.  Clark,  195,  373. 
V.  Dales,  180. 
V.  Douglass,  458. 
V.  Drake,  604. 
•u.  Everhart,  425. 
V.  Flint,  19,  89,  106. 
•u.  Gilbert,  114. 
V.  Glasgow  Ass.  Co.,  34. 
V.  Lyons,  552,  596,  646. 
V.  Martin,  147. 
V.  Mayor  of  New  York,  692. 
V.  Partridge,  446. 
V.  Pendleton,  394. 
V.  Redman,  553. 
V.  Riemsdyk,  332. 
V.  Sears,  654. 
V.  White,  439,  443. 
Clarke  v.  Dickson,  416. 
V.  Elliott,  605. 
V.  Grant,  338,475-  504,  5o5.  5o8, 

585. 
V.  Mackintosh,  433. 
V.  Moore,  506,  517,  647,  684. 
V.  Price,  40,  143. 
■v.  Reins,  536,  701,  721. 
V.    Rochester,     Lockport,    and 
Niagara  Falls  R.R.  Co.» 
199,  231. 
V.  Seirer,  721. 
v.  Wright,  462. 
Clarkson  v.  De  Peyster,  118. 
Clason  V.  Bailey,  267,  270,  323,  335. 
Clavering  7/.  Clavering,  51. 
Clay  V.  Sharpe,  82. 

V.  Turner,  576. 
Clayton  v.  Ashdown,  159. 
V.  Carey,  12. 


XVI 


CASES    CITED. 


[The  figures  refer 
to  the  pages.] 


Clayton  ?'.  Fleet,  498,  515. 
7'.  Frazier,  382. 
V.  Newcastle  (Duke  of),  162. 
V.  Nugent  (Lord),  188. 
Cleary  ?/.  Babcock,  514. 
Cleaton  v.  Gower,  230,  272,  274,  730. 
Cleaveland  t.  Burrell,  66. 
Cleaves  t.  Foss,  334. 
Clegg  V.  Edmondson,  659,  633. 
Clemens  ?'.  Davis,  459. 
Clement  v.  Durgin,  386. 
7J.  Evans,  456. 
V.  Reid,  240,  444. 
Clements  7>.  Welles,  147. 
Clerk  7A  Wright,  314,  393. 
Clermont  t.  Tasburgh,  403,  421,  440. 
Cleveland  ?'.  Burton,  656. 
Clifford  V.  Turrell,  18,  396,  452,  508. 
Clifton  V.  Cockburn,  56,  518. 
Clinan  7/.  Cooke,  188,  195,  312,  313,  331, 

366,  367,  374,  471,  507,  508,  510. 
Cliner  v.  Hovey,  489. 
Clippinger  ?'.  Hepbaugh,  282. 
Clitherall  7).  Ogilvie,  8,  211,  241,  421, 

428. 
Clive  7v.  Beaumont,  119,  178. 
Clopton  7/.  Martin,  483,  494. 
Clough  V.  Hart,  118. 
Clowes  V.  Higginson,  402. 
Clute  7/.  Robinson,  553. 
Coale  V.  Barney,  585. 
Coates  V.  Gerlach,  727. 
Coburn  v.  Hartford  (City  of),  526. 
Cock  V.  Richards,  235,  283. 
Cocke  V.  Evans,  88. 
Cockell  V.  Taylor,  245. 
Cocker  7'.  Cowper,  386. 
Cockerell  v.  Cholmeley,  471. 
Cocking  V.  Pratt,  483,  507. 
Cockrane  v.  Willis,  402. 
Cocks  v.  Izard,  464. 
Cocksedge  v.  Cocksedge,  55. 
Coe  V.  Columbus,  etc.,  R.R.  Co.,  71. 

71.  Lindley,  127. 
Coftee  V.  Ruffin,  449. 
Coffin  V.  Cooper,  565,  566. 
Cofifing  7^.  Taylor,  484,  515. 
Cogent  V.  Gibson,  45. 
Coger  V.  M'Gee,  503. 
Cogger  V.  Lansing,  366. 
Cohen  v.  Wilkinson,  299. 
Coke  V.  Bishop,  227. 
Colborn  v.  Gould,  680. 
Colby  V.  Gadsden,  416. 
Colcock  V.  Butler,  655. 
Coldwell  V.  Myers,  19. 
Cole  V.  Cole,  342,  728. 

V.  Gibson,  283. 

V.  Potts,  360,  366,  375. 

V.  Sims,  28,  29,  33,  105. 


Cole  V.  Tyler,  461,  469. 

V.  Tyson,  740. 

V.  White,  373. 
Coleman  7'.  Eastern  Counties  R.R.  Co., 

293,  299. 
Coleman  7>.  First  Nat.  Bank  of  Elmira, 

333- 
Coleman  7/.  Upcot,  179. 
Colerick  v.  Hooper,  95. 
Coles  7A  Bowne,  199,  337,  398,  484,  510, 

517. 
Coles  V.  Pilkington,  78,  252. 

V.  Trecothick,  240,  259,  328,  331, 
332,  366. 
Collett  V.  Hever,  80. 
Collier  v.  Baptist  Education  Soc,  282. 

7J.  Brown,  245. 

V.  Jenkins,  88,  700,  711, 

V.  Lanier,  492,  499. 

V.  M'Bean,  545,  551. 
Collins  V.  Blantern,  285. 

V.  Dennison,  423. 

V.  Evans,  420. 

V.  Plumb,  45,  68,  139. 

7/.  Smith,  167,  545,  712. 

V.  Stutely,  739. 

V.  Tillou,  342. 

V.  Torry,  560. 

V.  Vanderver,  114,  610,  672. 
Collyer  7/.  Fallon,  loi. 
Colson  V.  Thompson,  199,  362,  576. 
Colt  V.  Netterville,  24. 

V.  Woolaston,  406,  442. 
Colter  V.  Morgan,  415. 
Colton  V.  Wilson,  86,  559. 
Columbia    Water-Powcr     Co.    v.    Co- 
lumbia, 72. 
Columbine  v.  Chichester,  120,  123,  i6r. 
Columbus,  etc.,  R.R.  Co.  v.  Watson,  69. 
Colwell  V.  Hamilton,  553. 
Colyear  v.  Mulgrave  (Countess  of),  74. 
Colyer  v.  Clay,  338. 
Com.  V.  Erie  &  North  East.  R.R.  Co., 

296. 
Com.  V.  Inhabs.  of  Cambridge,  298. 
Com.  V.  Gray,  309. 
Combs  V.  Little,  344. 
Commercial  Bank  v.  Nolan,  296. 
Commrs.  v.  Jones,  282. 
Commrs.  of  Canal  Fund  v.  Perr)',  282. 
Compton  V.  Collinson,  54. 
Comyns  v.  Boyer,  285. 
Conant  v.  Canal  Co.,  582. 

7A  Jackson,  159. 
Cone  V.  Niagara  Fire  Ins.  Co.,  519. 
Conger  7'.  Weaver,  743. 
Coninger  7/.  Summit,  341. 
Conlin  7'.  Ryan,  5. 

Connecticut  (State  ol)  7/.  Sheridan,  126. 
Connelly  v.  Pierce,  615. 


[The  figures  refer 
to  the  pages.] 


CASES    CITED. 


XVll 


Conner  v.  Drake,  58. 

V.  Henderson,  686. 

V.  Lewis,  349. 
Connolly  v.  Parsons,  463. 
Conover  v.  Wardell,  472. 
Conrad  v.  Lindley,  659. 

-v.  Williams,  283. 
Const  V.  Harris,  683. 
Converse  v.  Blumrich,  597,  642,  645. 
Conway  v.  Kinsworthy,  668. 
Conyers  v.  Ennis,  408. 
Cooch  V.  Goodman,  326. 
Cook  V.  Field,  48,  102. 
V.  Preston,  499. 
V.  Stearns,  386. 
V.  Vick,  60. 
Cooke  V.  Clay  worth,  159,  216,  487. 
V.  Cooke,  90,  III. 
V,  Husbands,  499. 
V.  Nathan,  478. 
V.  Oxley,  172. 
Coolidge  TJ.  Brigham,  693. 
Coombe  2/.  Meade,  12. 
Coombs  V.  Emery,  286. 
Cooper  V.  Brown,  563,  655. 

V.  Carlisle,  362. 

V.  Denne,  546. 

V.  Mu.  Fire  Ins.  Co.,  493. 

V.  Pena,  72,  260,  267,  611,  659. 

V.  Smith,  311,  329, 

V.  Stevens,  350. 
Cooth  V.  Jackson,   130,   193,  220,  355, 

358. 
Cope  7/.  Albinson,  172. 
V.  Parr}',  90,  in. 
Copeland  v.  Merc.  Ins.  Co.,  329. 
Copis  V.  Middleton,  458. 
Coppage  V.  Barnett,  462. 
Copper  Mining  Co.  v.  Beach,  47. 
Copps  V.  Holt,  204. 
Corbin  v.  Jackson,  379. 

V.  Tracy,  20. 
Corbitt  V.  Dawkins,  552. 
Corbus  V,  Teed,  83,  95,  599. 
Corder  v.  Morgan,  82. 
Cordon  v.  Sims,  334. 
Cork,  etc.,  R.R.  Co.,  In  re.,  301. 
Cornell  v.  Mulligan,  202. 
Cornfoote  v.  Fowke,  419,  540. 
Corning?/.  Colt,  172. 
Corolan  v.  Brabazon,  532. 
Corp.  of  Hythe  v.  East,  740. 
Corprew  v.  Arthur,  462. 
Corson  v.  Mulvany,  131,  132,  228,  268. 
Cory  V.  Cory,  56,  216. 
V.  Hyde,  309. 

V.  Thames  Iron  Works  and  Ship- 
building Co.,  739. 
Cosine  v.  Graham,  122. 
Coslake  v.  Till,  43,  633,  634. 


Cosser  ?y.  Collinge,  196,  197. 
Cosset  V.  Hobbs,  326. 
Coster  7^.  Clarke,  541. 

V.  Turner,  627. 
Costigan  v.  Hastier,  225. 
Cothreal  v.  Talmadge,  29. 
Cotterell  v.  Homer,  462. 
Cottington  v.  Fletcher,  398. 
Cotton  V.  Ward,  565. 
Coulson  V.  Walton,  657. 
Counter  z/.  McPherson,  258,  581,  677. 
Courcier  v.  Graham,  704. 
Cousins  V.  Wall,  341. 
Coult  V.  Craig,  514. 
Covell  V.  Cole,  167. 
Coverley  v.  Burrell,  538. 
Cowdin  V.  Cram,  156,  157. 
Cowell  V.  Simpson,  27. 
Cowenhoren  v.  Brooklyn  (City  of),  5. 
Cowles  ?/.  Buchanan,  118. 
V.  Raguet,  287. 
V.  Whitman,  19,  22. 
Cowley  t/.  Watts,  198,  315. 
Cowpe  V.  Bakewell,  744. 
Cox  V.  Boyd,  576. 

V.  Cox,  52,  199,  250,  387,  748. 
V.  Middleton,  6,  195,  421,  438. 
V.  Scott,  1 56. 

V.  Western  Pacific  R.R.  Co.,  526. 
Coyle  V.  Davis,  350. 
Cozine  v.  Graham,  398. 
Crabtree  v.  Levings,  609,  644. 
Cragg  V.  Holme,  1 59. 
Craig  V.  Johnson,  86. 

V.  Kittredge,  497. 

V.  Leiper,  656. 

V.  Martin,  649. 

V.  Missouri  (State  of),  281. 

V.  Smith,  78. 
Craige  v.  Craige,  504. 
Crampton  v.  Varna  R.R.,  6. 
Crane  v.  Conklin,  429,  442. 

V.  De  Camp,  209,  575,  690. 

V.  Gough,  5. 

V.  Roberts,  175. 
Cranston  v.  Smith,  122. 
Cranstoun  (Lord)  v.  Johnston,  66. 
Crary  v.  Goodman,  512. 

V.  Smith,  617. 
Crawford  v.  Morrell,  279. 

V.  Wick,  376. 
Crawley  v.  Timberlake,  468. 
Crawshay  v.  Collins,  58. 
Creigh  v.  Shatto,  546. 
Christian  v.  Cabell,  564. 

V.  Ran  some,  426. 
Cribbins  v.  Markwood,  241. 
Cripps  V.  Jee,  484,  503. 
Cristy  v.  Barnhart,  373. 
Crittenden  v.  Drury,  645. 


XVlll 


CASES    CITED. 


[The  figures  refer 
to  the  pages.] 


Crocker  7'.  Higgins,  ii6,  364. 
Crockford  7>.  Alexander,  135. 
Croft  V.  Arthur,  468. 

V.  Haw,  148. 
Crofton  V.  Ormsby,  103,  589,  647. 
Crompton  v.  Melbourne  (Lord),  703. 
Cromwell  v.  O wings,  521. 
Cronk  v.  Trumble,  371. 
Croome  v.  Lediard,  473,  529. 
Crop  V.  Norton,  339. 
Crosbie  v.  Tooke,  96,  99,  135,  590,  591. 
Crosby  v.  Davis,  79. 

V.  Middleton,  507. 
Crosier  v.  Acer,  468,  481. 
Crosse  v.  Keene,  527,  539. 

V.  Lawrence,  527,  539. 
Crossley  v.  Maycock,  173,  176. 
Crow  V.  Rogers,  74. 
Crowder  v.  Austin,  463. 

V.  Langdon,  483. 
Crowe  V.  Ballard,  453. 
Croyston  v.  Banes,  1 30. 
Cruise  v.  Christopher,  429. 
Crull  V.  Dodson,  307. 
Crump  V.  U.  S.  Mining  Co.,  419. 
Cruttwell  V.  Lye,  44,  46. 
Cubitt  V.  Blake,  627. 
Cud  V.  Rutter,  24,  730. 
Cuddee  v.  Rutter,  163. 
Cuddon  V.  Cartwright,  218. 
Cuff  2/.  Borland,  211,  402. 
Cullum  V.  Bank,  744. 
Cumberland  Coal  Co.  7a  Sherman,  478. 
Cummings  v.  Arnold,  685. 
V.  Coe,  4. 
V.  Gill,  382. 
V,  Mayor,  etc.,  of  Brooklyn, 

8. 
ZK  Steele,  203,  483. 
Cummins  v.  Nutt,  379. 
Cunningham  v.  Brown,  616. 
V.  Gwinn,  608. 
V.  Sharp,  549,  553,  569. 
Cuppy  V.  Hixon,  372. 
Curlin  v.  Hendricks,  251. 
Curling  v.  Flight,  197. 
Curran  v.  Holyoke  Water  Power  Co., 

78,  217,  720. 
Currier  v.  Howard,  96. 
Curry  v.  Keyser,  415. 
Curtis  7/.  Buckingham  (Marquis  ol),  135. 

V.  Fox,  461. 

V.  Leavitt,  296. 

V.  Perry,  520. 

V.  Sage,  396. 
Cusack  V.  White,  285. 
Custar  V.  Titusville  Water  &  Gas  Co., 

419. 
Custard  z'.  Custard,  481. 
Cutler  V.  Cochrane,  687. 


Cutler  V.  Smith,  687. 
Cutlett  V.  Bacon,  369. 
Cutting  V.  Dana,  20,  25. 
Cutts  V.  Thodey,  83,  676,  696. 


Da  Costa  v.  Davis,  167. 
Dacre  v.  Georges,  518. 
Dade  v.  Madison,  287. 
Dailey  7/.  Litchfield,  27,  103,  601. 
Dahoney  v.  Hill,  in. 
Dakin  v.  Williams,  29. 
Daking  v.  Whimper,  462. 
Dalby  v.  Pullen,  564,  711. 
Dale  V.  Hamilton,  339,  356,  361. 
V.  Lister,  272,  701. 
V.  Roosevelt,  405. 
Dalton  V.  Dalton,  444. 
Dalzell  V.  Crawford,  545,  564. 
Dana  v.  Bank  of  St.  Paul,  295. 
V.  Brown,  84. 
V.  King,  614. 
Danforth  v.  Laney,  375. 

V.  Fhila.,  etc.,  R.R.  Co.,  69, 
161. 
Daniel  v.  Adams,  94,  164. 
V.  Collins,  119. 
V.  Fraser,  7,  224. 
V.  Hill,  578. 
V.  Leitch,  566. 
V.  Mitchell,  481,  489. 
V.  Morrison,  127. 
Daniels  v.  Davison,  188, 
Dankel  v.  Hunter,  92. 
Darbey  v.  Whitaker,  43,  193. 
Dark  v.  Bagley,  351. 
Darling  v.  Roarty,  8. 
Darlington  v.  McCoole,  247. 
D'Arras  v.  Keyser,  268,  645. 
Dartmouth  College  v.  Woodward,  296. 
Daughdrill  v.  Edwards,  226. 
Davenport  v.  Bishop,  76,  525. 
V.  Mason,  355,  357. 
V.  Sovel,  498. 
Davidson  v.  Little,  224,  244. 
Davies  v.  Davies,  444. 
Davis  V.  Abraham,  415. 
V.  Bowker,  258. 
V.  Cooper,  414. 
V.  Darrow,  560. 
V.  Davis,  94. 
V.  Hall,  4. 
V.  Harrison,  124. 
V.  Hayden,  48, 
V.  Henry,  89,  105. 
V.  Hone,  2,    165,   213,  233,  506, 

581. 
V.  Jones,  163,  164. 
V.  Marlborough   (Duke  of),  loi, 
235- 


l^The  figures  reter 
to  the  pages.] 


CASES    CITED. 


XIX 


Davis  V.  Mason,  281. 

V.  Moore,  375. 

V.  Parker,  66,  243,  604,  724,  743. 

V.  Perkins,  542. 

V.  Shepherd,  490. 

V.  Shields,  327,  336. 

V.  Stevens,  634. 

V.  Syrnonds,  209,  685. 

V.  Townsend,  369,  379,  380,  685. 
Davison  v.  Davison,  389. 

V.  Perrine,  563,  712. 
Davy  V.  Barber,  258,  745. 
Dawson  v.  Massey,  289. 

TJ.  Solomon,  747. 
Day  V.  Cooley,  461. 
V.  Griffith,  206. 
V.  Newman,  239. 
Dayton  v.  Fisher,  94. 
Deaderich  v.  Watkins,  449. 
Dean  v.  Dean,  130,  398. 

V.  Smith,  157. 
Deane  v.  Izard,  338. 

V.  Rastron,  214,  245. 
Dearborn  v.  Cross,  687. 
Dearth  v.  Williamson,  553. 
De  Beerski  v.  Paige,  327. 
De  Begnis  v.  Armistead,  275,  285. 
De  Biel  v.  Thomson,  332. 
De  Brassac  v.  Martin,  740. 
De  Camp  v.  Feay,  646. 

V.  Crane,  645,  677. 
Deck's  Appeal,  12,  18. 
De  Cordova  v.  Smith,  659. 
De  Forest  v.  Bates,  595. 
De  Groft't^.  American,  etc.,  Co.,  295. 
De  Groot  v.  Vanduzer,  288. 
Dehogton  v.  Money,  79,  458. 
Deichman  v.  Deichman,  611. 
Delabere  v.  Norwood,  81. 
Delafield  v.  Anderson,  245. 
Delassus  v.  Poston,  594. 
Delavan  v.  Duncan,  553,  609,  610,  656. 
Demarest  v.  McKee,  654. 
De  Mattos  v.  Gibson,  38,  143,  148,  152. 
De  Medina  v.  Norman,  163. 
Deming  v.  State,  279. 
Denbo  v.  Tipton,  74. 
Denne  v.  Light,  225,  422,  424, 
Dennison  v.  (.Jothring,  588. 
Denniston  v.  Coquillard,  578. 
Denny  v.  Hancock,  420,  487. 
Dent  V.  Bennett,  289. 
Denton  v.  Jackson,  84. 

V.  McKenzie,  309. 
V.  Stewart,  161,  542,  730, 
De  Peyster  v.  Hasbrouck,  502. 
De  Pol  V.  Sohlke,  152. 
Derby  v.  Johnson,  692. 
De  Rivahnoli  v.  Corsetti,  150,  156. 
De  Rutte  v.  Muldrew,  269. 


Desell  V.  Casey,  492. 

Despain  v.  Carter,  1 19,  382. 

Devenish  v.  Brown,  163. 

De  Visme  v.  De  Visme,  742,  744. 

Dewey  v.  Moyer,  461. 

Deyer  7/.  Martin,  129. 

Dial  V.  Crane,  693. 

V.  Hair,  467. 
Dibble  v.  Hutton,  54. 
V.  Jones,  428. 
Dickerson  v.  Chrisman,  355. 
Dickinson  v.  Any,  726. 
V.  Lee,  539. 
V.  McDermott,  136. 
Dietrichsen  v.  Cabburn,  41,   144,    145, 

265. 
Dill  V.  Shahan,  471,  475. 

V.  Wareham,  303. 
Diman  v.  Providence,  etc.,  R.R.  Co., 

481. 
Dimmock  v.  Hallett,  431,  432. 
Dinham  v.  Bradford,  59,  63. 
Ditto  V.  Harding,  659,  660,  616. 
Dixon  V.  Rice,  571. 
Doan  V.  Mauzey,  731,  734. 
Doar  V.  Gibbs,  578,  631. 
Dobbs  V.  Norcross,  548. 
Dobell  V.  Hutchinson,  311,  710. 

V.  Stevens,  438. 
Dobson  V.  Litton,  204. 
V.  Racey,  289. 
Dock  V.  Hart,  364. 
Dodd  V.  Seymour,  248,  553. 

V.  Wakeman,  349,  399. 
Dodge  V.  Clark,  126. 
Dodsley  v.  Kinnersley,  11. 
Dodson  V.  Swan,  279. 
Doe  D.  Gray  v.  Stanion,  197. 
Doe  D.  Lyster  v.  Goldwin,  188. 
Doe  D.  Mann  v.  Walters,  188. 
Doe  V.  Manning,  462. 

V.  Pitcher,  285. 
Doggett  V.  Emerson,  416,  417. 
Dolman  v.  Nokes,  414. 
Doloret  v.  Rothschild,  10,  24,  633. 
Donallen  v.  Lenox,  279. 
Donnellan  v.  Read,  395. 
Donelson  v.  Posey,  159,  216. 
Doogood  V.  Rose,  610. 
Dooley  v.  Watson,  28,  44,  66. 
Doolin  V.  Ward,  281,  465, 
Dorsey  T/.  Campbell,  127. 
Doty  V.  Wilder,  308,  334. 
Dougan  v.  Blocher,  373,  383. 
Dougherty  v.  Dougherty,  468. 

V.  Hamston,  7. 
Douglass  V.  Spears,  270,  323. 
Dow  V.  Ker,  471. 
Dowell  V.  Dew,   94,  96,   99,   loi,   103, 

376. 


XX 


CASES    CITED. 


[The  figures  refer 
to  the  pages.] 


Dowling  t/.  Bitjemann,  21. 

Down  V.  Hatcher,  55. 

Downer  7'.  Church,  721. 

Downey  v.  Hotchkiss,  350. 

Downing  v.  Mt.  Washington  R.R.  Co., 

296. 
Downing  z/.  Risley,  89,  91,  726. 
Downman  v.  Jones,  112. 
Downs  V.  Collins,  195,  522. 
Doyle  V.  Dixon,  394. 

V.  Harris,  7. 

V.  Teas,  604. 
Drainage  Commrs.  v.  Dunkley,  313. 
Drake  v.  Barton,  740. 

V.  Collins,  496. 

V.  Latham,  431. 
Draper  7/.  Gordon,  127. 
V.  Pattina,  309. 
Dressel  v.  Jordan,  564,  566. 
Drew  V.  Clarke,  477. 

V.  Haynes,  12. 
Drewe  v.  Corp  ,  535. 

V.  Hanson,  627. 
Druiff  7^  Parker,  492. 
Drummond  v.  Bolton  (Duke  of),  169. 
Drury  v.  Conner,  369,  536. 

V.  Hooke,  283. 

V.  Mclins,  142. 
Drysdale  v.  Mace,  409,  437. 
Du  Biel  V.  Thompson,  182. 
Duble  V.  Batts,  179. 
Dubois  V.  Baum,  659. 
Du  Bois  V.  Del  &  Hud.  Canal  Co.,  333. 
Dubose  V.  James,  564. 
Duddell  V.  Simpson,  695. 
Dudley  %'.  Bachelder,  122. 
V.  Butler,  298, 
7/.  Colley,  278. 
V.  Little,  465. 
DufTf7/.  Fisher,  19,  20,  124,  605. 
Duffy  V.  O'Donovan,  616,  672. 
Dugan  V.  Colville,  366,  381,  640. 

V.  Gitting,  391. 

V.  Vattier,  455. 
Duke  V.  Andrews,  178. 

V.  Mayor  of  Exon,  96. 
Dulany  v.  Rogers,  203,  483. 
Duncan  v.  Blair,  354. 

V.  M'CulJDUgh,  216. 
Duncuft  V.  Albrecht,  24. 
Dundas  v.  Biddle,  164. 
Dundass  v.  Duiens,  390. 
Dunham  v.  Boston  (City  of),  185. 

V.  Jackson,  155. 
Dunlap  V.  Gibbs,  1 18. 
Dunn  V.  Moore,  367,  384. 
Dunnell  v.  Kctlctas,  59. 
Dupree  v.  M' Don  aid,  500, 

V.  Thompson,  472. 
Durand  v.  Sage,  672. 


Durant  v.  Bacot,  507. 

V.  Fitley,  53. 
Durell  V.  Haley,  409. 

V.  Pritchard,  740. 
Durett  7/.  Simpson,  538,  719, 
Durham  (Dean  ol),  ex  parte,  744. 
Durham  v.  Legard,  716,  719. 
Durst  V.  Swift,  29. 
Dustin  V.  Newcomer,  728,  752. 
Dutch  Church  v.  Mott,  545,  565. 
Dutton  V.  Dutton,  53. 

V,  Pool,  T"]. 
Duvall  V.  Myers,  199,  261,  309. 
Dwight  V.  Cutler,  197,  560. 

V.  Hamilton,  281. 

V.  Pomeroy,  445,  446. 
D'Wolf7/.  Pratt,  382,  616. 
Dyas  V.  Cruise,  273,  331,  700. 
Dyer  v.  Hargrave,  421,  436,  437,  yew, 

707,  714,  715. 
Dyer  v.  Martin,  398. 
Dygert  v.  Remerschnider,  461. 
Dykers  v.  Townsend,  331,  333. 
Dykes  v.  Blake,  711. 
Dyson  v.  Hornby,  742. 


Eads  V.  Carandolet,  174. 

V.  Williams,  627,  633,  653,  659, 
676. 
Eagleson  v.  Shotwell,  286. 
Eames  v.  Eames,  229. 
Earl  V.  Campbell,  549. 

V.  Halsey,  576,  635. 
Early  v.  Garrett,  420,  540. 
East   Anglican   R.R.   Co.   v.   Eastern 

Counties  R.R.  Co.,  297. 
Eastbrook  v.  Hapgood,  754. 
Eastern  Counties  R.R.  Co.  v.  Hawkes, 

17,  109,  294,  297,  300. 
Eastern  R.R.  Co.  v.  Benedict,  333. 
East  India  Co.  v.  Nutuumbadoo  Veera- 

sawny  Moodelly,  396. 
East  India  Co.  v.  Vincent,  39. 
Eastland  v.  Vanarsdel,  224,  421. 
East  London  Water  Works   v.  Baily, 

109. 
Eastman  v.  Plumer,  224,  243,  467,  576, 

616. 
Eaton  V.  Laughter,  168. 
V.  Lyon,  47. 
V.  Whitaker,  354,  356. 
Eaton's  Case,  168. 
Ebert  v.  Wood,  379. 
Echliff  7/.  Baldwin,  89,  135. 
Echols  V.  Butler,  696. 
Eckert  v.  Eckert,  356,  383. 

V.  Mace,  387. 
Eddy  V.  Capron,  282. 
Edgerton  v.  Peckham,  593,  599,  646. 


[The  figures  refer 
to  the  pages.] 


CASES    CITED. 


XXI 


Edinburgh,  Perth  &  Dundee  R.R.  Co. 

V.  Philip,  593. 
Edmonds  v.  Goodwin,  468. 
Edwards  v.  Atkinson,  631. 
V.  Burt,  236. 
V.  Estell,  359. 
V.  Fry,  382. 
V.  Grand  Junction  R.R.  Co., 

108,  228. 
V.  Handley,  209, 
V.  McLeay,  402,  408,  437. 
V.  Meyrick,  289. 
V.  Simmons,  1 13. 
V,  Warwick  (Countess  ot),  76. 
V.  Wickwar,  416. 
Egerton  v.  Mathews,  171,  323. 
Egmont  (Earl  of)  v.  Smith,  112,  583. 
Eigelberger  v.  Kibler,  467. 
Eider  v.  Allison,  417. 

V.  Elder,  447,  510. 
Elderkin  v.  Fitch,  127. 
Eldred  v.  Mallory,  283. 
Elfe  V,  Gadsden,  335. 
Eliason  7/.  Henshaw,  175. 
Ellard  v.  Llandaff  (Lord),  215,  534. 
Ellerbe  v.  Ellerbe,  116. 
Elhcott  V.  Ellicott,  118. 
V.  Turner,  394. 
V.  White,  410. 
Elliott  V.  Armstrong,  106. 
V.  Boaz,  423. 
V,  Thomas,  378. 
Ellis  V.  Burden,  36,  224. 
V.  Colman,  161. 
V.  Dead  man,  204,  316. 
V.  Ellis,  119,  353. 
V.  Hussey,  577. 
V.  Smith,  326. 
Elmore  v.  Austin.  499. 

V.  Kingscote,  190. 
Else  V.  Else,  548. 
Elsworthy  v.  Bird,  54. 
Ely  V.  McKay,  613,  673. 

V.  Perrine,  117,  483,  484. 
V.  Stewart,  425. 
Emans  v.  Emans,  61. 
Emerson  v.  Heelis,  335. 
Emery  v.  Grocock,  195,  556. 
V.  Smith,  395. 
V.  Wase,  62,  163,  164. 
Emmett  v.  Dewhurst,  510. 
Emmons  v.  Riger,  618. 
Enders  v.  Williams,  462. 
Endicott  v.  Perry,  334. 
England  v.  Curling,  42,  43,  141,  683. 
V.  Downs,  283. 
V.  Jackson,  519. 
Englander  v.  Rogers,  605,  608. 
Ennis  v.  Waller,  335. 
Enraght  v.  Fitzgerald,  745. 


Entz  V.  Mills,  335. 

Episcopal  Church  of  Macon  v.  Wiley, 

335- 
Episcopal  Society  v.  Episcopal  Church 

in  Dedham,  302. 
Eppinger  v.  McGreal,  663. 
Erie  &  N.  Y.  City  R.R.  Co.  v.  Patrick, 

.530- 
Errington  v,  Aynesly,  33,  165. 
Erwin  v.  Erwin,  173. 

V.  Myers,  701,  713. 

V.  Parham,  246. 

V.  Saunders,  685. 
Esdaile  v.   Stephenson,   555,  708,  743, 

744. 
Eskridge  v.  Glover,  172. 
Esmay  v.  Gorton,  309,  398. 
Espey  V.  Lake,  443. 
Esposito  V.  Bowden,  275. 
Espy  V.  Anderson,  347,  686. 
Estes  V.  Furlong,  323,  661. 
Estill  V.  Clay,  97. 
Etheridge  v.  Vernoy,  717. 
Eubank  v.  Hampton,  672. 
Evans  v.  Battle,  250,  390,  748. 

V.  Boiling,  431. 

V.  Cogan,  165. 

V.  Edmonds,  402. 

V.  Ellis,  289. 

V.  Evans,  53. 

V.  Harris,  129. 

V,  Jackson,  79,  91. 

V.  Kingsberry,  569,  707. 

V.  Lee,  355,  396. 

V.  Llewellin,  453. 

V.  Prothero,  317. 

V.  Richardson,  277. 

V.  Walshe,  229. 

V.  Wells,  113,  331. 
Evants  v.  Strode,  494. 
Everson  v.  Kirtland,  553. 
Ewald  V.  Lyons,  691. 
Ewing  V.  Beauchamp,  660. 

V.  Crouse,  642. 

V.  Osbaldiston,  275. 

V.  Patterson,  127. 
Ewins   V.   Gordon,    16,  260,   262,   308, 

615,657. 
Express  Co.  v.  R.R.  Co.,  41. 
Eyre  v.  Eyre,  351,  360,  669. 
V,  Menro,  105. 

V.  Potter,  116,  237,  443,  450. 
Eyton  V.  Dicken,  556. 


Fagan  v.  Barnes,  74. 
Faikney  v.  Reynous,  288. 
Faine  v.  Brown,  234. 
Fairbanks  v.  Dow,  609,  614. 
Fairbrother  v.  Shaw,  365. 


xxu 


CASES    CITED. 


[The  figures  refer 
to  the  pages.] 


Falcke  v.  Gray,  22,  211,  421,  450. 
Falkner  v.  O'lJrien,  453. 
Fall  V.  Hazelrigg,  399,  611. 
Fallon  7/.  R.R.  Co.,  524. 
7A  Robbins,  475. 
Falls  V.  Carpenter,  640. 

V.  Gaither,  180. 
Fannin  -v.  McMullan,  339. 
Fanning  7>.  Dunham,  286,  453. 
Farebrother  v.  Simmons,  329. 
Fareira  v.  Gabell,  286. 
Farley  v.  Bryant,  484. 
V.  Palmer,  725. 
V.  Stokes,  384. 
V.  Vaughn,  647,  672. 
Farmer  v.  Russell,  276. 

V.  Vollentine,  15. 
Farmer's  Loan  &  Trust  Co.  v.  Clowes, 

295. 
Farmer's    Loan  &   Trust  Co.  v.  Perry, 

295. 
Farmer's  &  Miller's  Bank  v.  Detroit  & 

Milwaukee  R.R.  Co.,  302. 
Farmer's   National   Bank  v.  Fletcher, 

542. 
Farnam  v.  Brooks,  289. 
Farnham  v.  Clements,  122,  350. 
Farr  v.  Glading,  224. 
Farrar  v.  Alston,  439. 
V.  Patton,  355. 
Farrell  v.  Bean,  198. 
Farrer  v.  Ayres,  472. 
Farris  v.  Bennett,  657. 
Farwell  v.  Johnston,  368. 
•     V.  Lowther,  323. 
V.  Mather,  320. 
Faure  v.  Martin,  540,  719. 
Fawcett  v.  Whitehouse,  729. 
Fay  V.  Oliver,  689,  694. 
Feary  v.  Sterling,  395. 
Featherston  u.  Hutchinson,  279. 
Featherstonaugh  v.  Fenwick,  100. 
Featherstone  v.  Cook,  141. 
Fechter  T/.  Montgomery,  138. 
Fellowes  v.  Gwyclyr  (Lord),  100,  439. 
Fells  V.  Read,  23. 
Fenelly  v.  Anderson,  266. 
Fenly  v.  Stewart,  113,  323. 
Fenner  v.  Hepburn,  10. 
Fennings  v.  Humphery,  6. 
Fentiman  v.  Smith,  386. 
Fenton  v.  Emblers,  394. 

V.  Hollo  way,  216. 
Fenwick  v.  Bulman,  83,  98. 

V.  Floyd,  335. 
Ferguson  v.  Norman,  285. 
V.  Paschall,  22. 
V.  Staver,  318. 
V.  Tadman,  707. 
z/.Wilson,  6, 1 14,  542, 737, 740. 


Ferrier  v.  Buzick,  542. 
Ferris  v.  Irving,  204. 
Ferry  v.  Stephens,  250. 
Ferson  v.  Sanger,  481. 
Fessler's  Appe  il,  635. 
Feversham  (Earl  of)  v.  Watson,  586. 
Fewster  v  Turner,  580. 
Field  V.  Hutchinson,  122,  128. 
V.  Jones,  12. 
V.  Maghee,  99. 
V.  Mann,  682. 
V.  Wilson,  118. 
Fife  V.  Clayton,  484. 
Fildes  V.   Hooker,   197,  233,   572,  708, 

716. 
Finch  V.  Finch,  391. 
V.  Parker,  663. 

V.  Salisbury  (Earl  of),  29,  104. 
Fine  v.  Rogers,  6S9. 
Finley  v.  Aiken,  18. 
V.  Lynn,  492. 
Finn  v.  Sleight,  560. 
Finucane  v.  Kearney,  382. 
Firmstone  v.  De  Camp,  483. 
First  Baptist  Church  of  Ithaca  7^.  Bige- 

low,  314,  334. 
Firth  V.  Greenwood,  330. 

V.  Midland  R.R.  Co.,  58,  72. 
Fish  V.  Leser,  211,  215. 

V.  Lightner,  7. 
Fisher  7/.  Boody,  116. 
V.  Bowser,  120. 
V.  Moolick,  373. 
V.  WorraJl,  420. 
Fishmonger's  Co.  v.  Robertson,  301. 
Fitch  V.  Boyd,  577,  668. 
V.  Sutton,  55. 
V.  Wiliard,  660. 
Fitt  V.  Cassanet,  693. 
Fitzer  v.  Fitzer,  54. 
Fitzgerald  v.  Peck,  481. 
Fitzhugh  V.  Jones,  178. 
V.  Maxwell,  31. 
V.  Smith,  99. 
Fitzpatrick  v.  Beatty,  199. 
V.  Stone,  541. 
Fitzsimmons  v.  Allen,  369. 
V.  Joslin,  419. 
Flagg  V.  Mann,  729. 
Flagler  v.  Pleiss,  447. 
Flanagan   v.   Gt.    Western    R.R.   Co., 

290. 
Flarty  7/.  Odium,  loi. 
Fleming  v.  Holt,  78,  91. 
V.  Martin,  461. 
V.  Snook,  146. 
Fletcher  v.  Button,  553. 

V.  Cole,  685,  694. 
V.  Fletcher,  53. 
V.  Wilson,  127. 


'[The  figures  refer 
to  the  pages.] 


CASES    CITED. 


XXlll 


Flight  V.  Barton,  197,  438. 

V.  Bolland,  159,  262,  270. 
V.  Booth,  712,  716. 
Flint  V.  Brandon,  38. 
V.  Woodin,  463. 
Flood  V.  Finlay,  100. 
Florence  Sewing  Machine  Co.  v.  Zeig- 

ler,  462. 
Flower  v.  Flower,  54. 
Floyd  V.  Buckland,  391. 
Fluyder  v.  Cocker,  744. 
Foley  V.  Crow,  569,  582,  659,  705. 
V.  Keegan,  29. 
V.  McKeown,  539,  706,  717. 
Follmer  v.  Dale,  369. 
Fonbert  v.  Turst,  64. 
Fonnger  v.  Welch,  125. 
Foot  v.  Webb,  199. 
Foote  V.  Emerson,  277. 
V.  Garland,  16. 
V.  Mitchell,  373. 
Footman  v.  Pendergrass,  462. 
Force  v.  Dutcher,  318,  362. 
Ford  V.  Crompton,  103. 
V.  Finney,  307. 
V.  Harrington,  278. 
V.  Heely,  82. 
V.  Heron,  232. 
V.  Hitchcock,  159,  216. 
V.  Jermon,  153. 
V.  Williams,  333. 
Fordyce  v.  Ford,  137,  626,  627,  655. 
Fore  V.  McKenzie,  439. 
Fores  v.  Johnes,  285. 
Forniquet  v.  Forstall,  84. 
Forrer  z/.  Nash,  555,  711. 
Forrest  v.  Forrest,  154. 

V.  Hunt,  287. 
Forsythe  v.  Clark,  119,  459,  460. 
V.  Manton,  58. 
V.  McCauley,  18. 
Forteblow  v.  Shirley,  538. 
Fortescue  v.  Hennah,  52,  105. 
Forward  v.  Armistead,  247,  389. 
Foss  V.  Haynes,  103.  726. 
Foster  v.  Charles,  423. 

V.  Deacon,  707,  746. 
V.  Hall,  354,  361. 
V.  Hoggart,  564. 
V.  Mentor  Life  Ass.  Co.,  181. 
V.  Taylor,  205. 
V.  Vassal  I,  66. 
V.  Wood,  458. 
Fothergill  v.  Rowland,  21,  13S,  139. 
Fowle  V.  Freeman,  267,  270,  315. 
Fowler  v.  Lightburn,  87. 

V.  Kedican,  188,  347. 
V.  Scully,  275. 
Fox  V.  Birch,  606. 
V.  Loughby,  384. 


Fox  V.  Mackreth,  289,  414. 
Frame  v.  Dawson,  361,  366,  383. 
Frampton  v.  Frampton,  54. 
France  v.  France,  389. 
Francis  v.  Love,  668. 

V.  Wigzell,  93,  94,  160. 
Frank  v.  Basnett,  137,  703. 
Frankfort,      etc.,      Turnpike     Co.     r/. 

Churchill,  576. 
Franklin  v.  Brownlow  (Lord),  590. 

V.  Miller,  693,  695. 
Franklin  Ins.  Co.  v.  McCrea,  5. 
Franklyn  v.  Lamond,  528. 

V.  Tuton,  35. 
Franks  v.  Martin,  199,  206. 

V.  Weaver,  442. 
Franz  v.  Orton,  567,  734. 
Frarey  v.  Wheeler,  92,  94,  725. 
Fraser  v.  Child,  307. 
Frazier  7/.  Broadnax,  loi. 
Frederick  v.  Coxwell,  163,  164,  166. 
Fredericks  v.  Mayer,  151. 
Freebody  v.  Parry,  606. 
Freelove  v.  Cole,  278. 
Freeman  v.  Baker,  420. 
V.  Cooke,  i8r. 
z).  Freeman,  382,  387. 
Freemster  v.  May,  553. 
Freeport  (Inhabs.  of)  v.  Bartol,  312. 
Freer  7/.  Hesse,  554,  556. 
Freeson  v.  Bissell,  613. 
Freetly  v.  Barnhart,  550. 
Freme  v.  Wright,  197. 
French  v.  Macale,  27,  30,  31,  32. 

V.  Shoemaker,  453. 
Frenzel  v.  Miller,  417. 
Friebert  v.  Burgess,  187,  198. 
Friend  v.  Harrison,  285. 
Fripp  V.  Fripp,  240. 
Frisby  v.  Ballance,  7,  208,  483. 

V.  Parkhurst,  52. 
Frith  V.  Lawrence,  179. 

V.  Midland  R.R.  Co.,  192,  542. 
Frost  V.  Beavan,  160. 
V.  Hill,  334. 
V.  Moulton,  315. 

V.  Raymond,  196. 
Fry  V.  Shepler,  354,  378. 
Fryer  v.  Rockefeller,  552. 
Fugate  V.  Hansford,  316,  451. 
Fugatt  V.  Robinson,  56. 
Fulham  v.  McCartfiy,  79,  97,  in. 
Fuller  V.  County  Commrs.,  351,  379. 

V.  Dame,  282. 

V.  Hogden,  439. 

V.  Hovey,  663. 

V.  Hubbard,  015. 

V.  Perkins,  402. 

V.  Trustees  of  Plainfield  School, 
296. 


XXIV 


CASES    CITED. 


[The  figures  refer 
to  the  pages.]  jj 


Fullerton  v.  Doyle,  691. 

V.  McCurdjf,  89,  1 03,  727. 
Fulton  V.  Loftis,  454. 

V.  Sniitli,  56. 
Funk  7'.  McKeoun,  564. 
Furbish  v.  White,  576. 
Furman  %>.  Clarke,  20. 
Furnival  v.  Crew,  46,  47,  90. 
Furnold  v.  Bank  of  the  State,  748. 


Gage  V.  Newmarket  R.R.  Co.,  297,  593. 
Galbraith  v.  Galbraith,  388. 

V.  Gedge,  92. 
Gale  IK  Archer,  609,  631,  636,  659. 

V.  (}ale,  441. 

V.  Leckie,  276. 

V.  Lindo,  181. 

V.  Nixon.  327. 
Gallatin  v.  Erwin,  127,429. 
Gallion  v.  IvIcCaslin,  455. 
Galloway  v.  Barr,  247,  657. 
V.  Holmes,  197. 
V.  Witherspoon,  429. 
Galton  V.  Emuss,  86,  465. 
Gangwer  v.  Fry,  383. 
Gannett  v.  Albree,  620. 
Gans  V.  Renshaw,  560. 
Gardiner  v.  Gerrish,  700. 
Gardner  v.  Booth,  462. 
Gardner,  ex  parte,  198,  676. 
Gariss  v.  Gariss,  668. 
Garner  T/.  Garner,  478. 

V.  Stubblefield,  366,  398. 
Garnett  v.   Maron,   209,  232,  240,  541, 

554,  660,  689. 
Garrard  v.  Grinling,  475,  505,  517. 
Garretson  v.  Vanloon,  576,  634. 
Garrett  v.  Luich,  573,  639. 
Garrow  v.  Davis,  439. 
Garth  v.  Cotton,  441. 

V,  Townsend,  520. 
V.  Ward,  727. 
Gartside  v.  Isherwood,  210. 
Garwood  v.  Eldridge,  472. 
Gaskarth  v.  Lowther  (Lord),  175, 
Gaskell  v.  Durdin,  727. 
Gaskins  z/.  Peebles,  121. 
Gas  Light  Co.  v.  Turner,  275. 
Gasque  v.  Small,  208,  209,  211,  239. 
Gaston  v.  Frankum,  93,  119,  160,  309. 

V.  Plumb,  9; . 
Gatlin  v.  Wilcox,  685. 
Gaunt  V.  Wainman,  560. 
Gaven  v.  Hagen,  603. 
Gavin  v.  Murphy,  472. 
Gayle  v.  Price,  560. 
Gasley  v.  Price,  197,  553,  609. 
Gazzard  v.  Webb,  406. 
tieddes  v.  Wallace,  683. 


Gee  V.  Pearse,  658,  675. 
Geisner  z*.  Kershner,  55,  680. 
Gelston  v.  Sigmund,  206. 
Genet  v.  Howland,  732. 
Gentry  t/.  Hamilton,  535. 

V.  Rogers,  663. 
George  v.  Harris,  282. 
Gerde  v.  Hawkins,  443. 
German  7a  Machin,  260,  368. 
Gerrard  v.  O'Reilly,  30. 
Gerrish  v.  Towne,  121. 
Gervais  v.  Edwards,  58,  264,  524,  525, 

53'- 
Getchell  v.  Jewett,  323,  659. 
Getty  V.  Hudson  River  R.R.  Co.,  114. 
Gevers  v.  Wright,  252. 
Gibbins  v.  Northeastern  Dist.  Asylum, 

179,  316. 
Gibbons  v.  Gaunt,  56,  471. 
Gibbs  V.  Blackwell,  90. 
V.  Champion,  644. 
V.  Mermaud,  156. 
V.  Smith,  282. 
Gibson  v.  Clarke,  605. 

V.  D'Este,  423,  437. 

V.  Dickie,  284,  285. 

V.  Goldsmid,  407,  584. 

V.  Milne,  594. 

V.  Patterson,  627. 

V.  Randolph,  443. 

V.  Russell,  452. 

V.  Spurrier,  538. 
Gifford  V.  Thorn,  449. 
Gilbert  v.  Gilbert,  473. 

V.  Petcler,  750. 

V.  Sykes,  394. 

V.  Trustees,  etc.,  323,  366. 
Gilchrist  7/.  Bine,  553. 

V.  McGee,  380. 
Gilday  v.  Watson,  369. 
GilfiUan  v.  Henderson,  45. 
Gill  V.  Bicknell,  334,  348. 

V.  Newell,  369,  610. 
Gillespie  v.  Edmonston,  180. 

V.  Moon,  403,  507,  511,  514. 
Gillet  V.  Maynard,  354. 
Gillilan  v.  Hinkle,  539,  717. 
Gilliland  v.  Phillips,  275. 
Gillis  V.  Hall,  27,  46. 
Gilman  v.  Brown,  27. 
Gilmore  v.  Johnson,  350. 
Gilpin  V.  Watts,  121. 
Gilroy  V.  Alls,  402. 
Givens  v.  Caider,  357,  358,  373. 
Glass  V.  Hulbert,   306,   338,  347,    355, 

367,  510,  513. 
Glass  V.  Warwick,  93. 
Glasscock  v.  Nelson,  668. 
Glasse  v.  Marshall,  442. 
Glassell  v.  Thomas,  717. 


[The  figures  refer 
to  the  pages.] 


CASES    CITED. 


XXV 


Glassington  v.  Thvvaites,  142. 

Glaymaker  ?/.  Sawin,  175. 

Glaze  V.  Drayton,  16,  86. 

Glengal  (Lord)  v.  Barnard,  315,  332. 

Glover  v.  Fisher,  89,  644,  652. 

V.  Smith,  ''19. 
Goddard  v.  Carlisle,  289. 
Goddin  v.  Vaugn,  15,  552. 
Godwin  v.  Collins,  209,  213,  227. 
Goilmere  v.  Battison,  53,  105. 
Golden  v.  Knapp,  545. 
Goldsmith  v.  Guild,  640. 
Goman  v.  Salisbury,  685. 
Good  V.  Herr,  472. 
V.  Mcale,  366. 
Goodale  v.  West,  600,  611. 
Gooday  v.  Colchester,  etc.,   R.R.  Co., 

109. 
Goode  V.  Hawkin,  465. 
Goodell  V.  Field,  492,  514,  656. 
Goodenow  v.  Curtis,  123,  412. 
Goodhue  v.  Barnwell,  360. 
Gooding  7/.  M'Alister,  513. 
Goodman  v.  Griffiths,  190,  311. 

V.  Whitcomb,  42. 
Goodwin  v.  Fielding,  103,  218,  243. 
V.  Lyon,  199.  384,  635. 
V.  Milton,  298. 
Gordere  v.  Downmg,  484. 
Gordon  v.  Gordon,  56,  476. 

(Lord)    V.    Hertford    (Marquis 
ot),  402,  475,  506,  517. 

V.  Parmelee,  431. 

V.  Saunders,  117. 

V.  Trevelyan,  195. 
Gore  V.  Stackpool,  87. 
Goring  v.  Nash,  76,  ^25. 
Gorton  v.  Smart,  622. 
Gosbell  V.  Archer,  311,  328,  334. 
Gosden  v.  Tucker,  360. 
Goss  V.  Nugent  (Lord),  685,  688. 
Gosse  V.  Jones,  363. 
Goucher  v.  Martin    519. 
Gough  V.  Crane,  392. 
Gould  V.  Kemp,  224. 

V.  Womack,  7,  224. 
Gourlay  v.  Somerset  (Duke  of),  58,  194, 

621. 
Gouverneur  v.  Titus,  497,  510. 
Governeur  7/.  Elmendori,  116. 
Gower  v.  Sterner,  499. 
Goylmer  v.  Paddiston,  105. 
Grace  v.  Dcnison,  190,  206,  314. 
Graffenstein  v.  Epstein,  424. 

Grafton  v.  ,  137. 

Graham  v.  Call,  191,  192,  199. 

V.  Gates,  ^36. 

V.  Hendren,  204. 

V.  Oliver,  274,  536,  702. 

V.  Pancoasl,  241. 


Graham  v.  Stucken,  156. 
Granger  v.  Worms,  712. 
Grant  v.  Craigmiles,  129. 

v.  Munt,  436,  707,  715. 
V.  Ramsey,  381. 
V.  Schoonhoven,  79. 
Granville  v.  Betts,  525. 
Gratz  V.  Gratz,  374. 
Graver  v.  Scott,  430. 
Graves  v.  Dugan,  349. 

V.  Lebanon  iSIat.  Bank,  417,  418. 
Gray  v.  Barton,  251. 
V.  Davis,  122. 
V.  Dougherty,  512,  611. 
V.  Hook,  282. 
V.  James,  317. 
V.  McCune,  "j^. 
V.  Ohio  &  Pa.  R.R.  Co.,  139. 
Greason  v.  Kettletas,  58. 
Great  v.  Mills,  27. 

Northern    R.R.    Co.   v.   Eastern 

Counties  R.R.  Co.,  102. 
Northern   R.R.  Co.  v.  Manches- 
ter, Sheffield  &  Lincolnshire 
R.R.  Co.,  144,  201. 
North  of  England  R.R.  v.  Clar- 
ence, 141. 
Western  R.R.  Co.,  v.  Birming- 
ham &  Oxford  Junction  R.R. 
Co.,  134.  163,  272,  532. 
Western   R.R.  Co.  v.  Rushout, 
299. 
Green  v.  Ball,  344. 

V.  Biddle,  748. 
V.  Covilland,  601,  664. 
V.  Drummond,  730. 
V.  Finin,  382,  671. 
V.  Folgham,  43. 
V.  Green,  133. 
V.  Low,  137,  532,  583. 
V.  Morris,  etc.,  R.R.  Co.,  478. 
V.  Nixon,  441. 
V.  Pole,  60. 
V.  Pulsford,  559. 
V.  Reynolds,  609,  614. 
V.  Richards,  267. 
V.  Sm'th,  161. 
V,  Thompson,  238,  450. 
V.  Wells,  689. 
Greenaway  v.  Adams,  25,  161,  542,  721, 

730- 

Greene  v.  West  Cheshire  R.R.  Co.,  14, 
72. 

Greenfield  v.  Carlton,  118. 

Greenhalgh  v.  Manchester  &  Birming- 
ham R.R.  Co.,  109,  166. 

Greenleaf  7/.  Queen,  534. 

Greenlee  v.  Greenlee,  378. 

Greenup  v.  Strong,  576.  600. 

Greenwood  v.  Churchill,  744. 


XXVI 


CASES    CITED. 


[The  figures  refer 
to  the  pages.] 


Greenwood  7/.  Ligon,  553. 
Gregg  V.  Hamilton,  382. 
V.  Sayres,  443. 
z/.  Wells,  181. 
Gregorys.  Mighell,  64,  371,  373,  397. 

V.  Wilson,  619,  624,  625. 
Gregson  v.  Riddle,  627. 
Gremare  v.  Le  Clerc  Bois  Valon,  285. 
Grenfell  v.  Windsor  (Dean  of),  loi. 
Grenningham  7/.  Ewer,  169. 
Gresham  v.  Peterson,  157. 
Grey  v.  Hesketh,  163. 

V.  Tubbs,  191,  198,  638. 
Griffin  v.  Cunningham,   257,    545,    548, 

655. 
Griffith  V.  Frederick   County  Bank,    7, 
58,  71,  224. 

Zf.  Spratley,  238,  245,  453. 
Griffiths  V.  Robbins,  452. 
Grigby  v.  Cox,  94. 
Grigg  V.  Landis,  584,  596,  599,  635. 
Grim  v.  Byrd,  430. 
Gross  V.  Leber,  48 1 . 
Grove  v.  Bastard,  549,  559. 
Groves  v.  Groves,  247. 
Grundy  v.  Ford,  563. 

V.  Wilson,  659. 
Gryle  v.  Gryle,  326. 
Guard  v.  Bradley,  78. 
Guedici  v.  Boots,  495. 
Guernsey  v.  Am.  Ins.  Co.,  513,  514. 

7'.  Edwards,  298. 
Guest  V.  Homfray,  653. 
Gulick  V.  Bailey,  465. 
Gully  V.  Grubs,  395. 
Gump's  Appeal,  492. 
Gunby  v.  Sluter,  417,  425. 
Gunter  v.  Halsey,  360,  398. 

V.  Thomas,  471. 
Gupton  V.  Gupton,  52,  161,  532,  732. 
Guth  V.  Guth,  54. 
Guthrie  v.  Thompson,  685. 
Guynet  v.  Mantel.  572,  709. 
Guynn  v.  McCauley,  250. 
G Willi m  V.  Stone,  730. 
Gwynn  v.  Hamilton,  471. 

V.  Lethbridge,  484. 
Gwynne  v.  Heaton,  449. 


Haberdasher's  Co.  7a  Isaac,  212. 
Hackett  v.  Aicott,  29. 
Haden  v.  Garden,  442. 
Hadley  7/.  Scranton,  415. 
Haggett  V.  Welsh,  60. 
Haight  V.  Badgeley,  68. 

V.  Childs,  363. 
Haines  7/.  Burnett,  171. 

V.  Haines,  249,  382,  383,  387. 
Hairston  v.  Jaudon,  353,  690. 


Hale  V.  Wilkinson,  7,  240,  247,  673. 
Hall  V.  Betty,  197. 

V.  Canter,  269. 

V.  Chaffee,  386. 

V.  Claggett,  507. 

V.  Delaplaine,  596,  645,  735,  752. 

V.  Denckla,  197. 

V.  Green,  663. 

V.  Hall,  176,  363. 

V.  Hardy,  60,  164. 

V.  Hiles,  20. 

V.  Hume,  93. 

V.  Huntoon,  285. 

V.  Jenkinson,  1 17. 

V.  Laver,  83,  95,  98,  682. 

V.  McLeod,  205. 

V.  Mullin,  275. 

V.  Palmer,  285. 

V.  Potter,  283. 

V.  Reed,  480. 

V.  Ross,  224. 

V.  Russell,  628. 

V.  Smith,  538. 

V.  Thompson,  414,  426,  431. 

V.  Warren,  4,  7,  160,  194. 

V.  Whittier,  602. 
Hallett  7/.  Middleton,  161. 
Hallows  V.  Fernie,  409. 
Halsa  V.  Halsa,  308. 
Halsey  v.  Grant,  571,  627,  708. 
Hamar  v.  Medsker,  213. 
Hamblin  v.  Dinneford,  150. 
Hamer  7/.  Sharp,  172. 
Hamill  v.  Thompson,  606. 
Hamilton  v.  Beal,  443. 

V.  Buckmaster,  551. 
V.  Dunsford,  143. 
V.  Grant,  226,  242. 
V.  Hamilton,  463,  735. 
V.  Jones,  307,  355,  383. 
V.  Kirwan,  443. 
V.  Lycoming  Ins.  Co.,  179. 
Hammer  7^.  McEldowney,  185,  204. 
Hammersley  7/.  Du  Biel,  181,  391. 
Hammond  7/.  Messenger,  118. 

V.  Pennock,  418,  467. 
Hampshire  7/.  Wickens,  171. 
Hanchett  7/.  McQueen,  79,  121. 
Hancock  v.  Carlton,  596,  599. 
u.  Edwards,  19.''. 
V.  Hancock,  588. 
Hand  v.  Jacobus,  92. 
Handley  v.  Fitzburgh,  5. 
Hane  v.  Goodrich,  355. 
Hanford  v.  McNair,  331. 
Hanks  v.  Pulling,  255. 
Hanna  v.  Phillips,  429. 

V.  Ratekin,  126,  642. 
V.  Wilson,  95. 
Hannay  v.  Eve,  444. 


[The  figures  refer 
to  the  pages.] 


CASES    CITED. 


XXVll 


Hannibal  &  St.  Jos.  R.R.  Co.  v.  Ma- 
rion, 292. 
Hanson  v.  Michelson,  248. 
Harbers  v.  Gadsden,  701,  702,  707. 
Harcourt  v.  Ramsbottom,  60. 
Hardeman  v.  Burge,  240,  449. 
Harden  v.  Hays,  384. 
Harder  v.  Harder,  52,  385. 
Hardesty  v.  Jones,  395. 

V.  Richardson,  199,  388. 
Harding  v.  Cox,  100. 

V.  Handy,  88,  89. 
V.  Metrop.  R.R.  Co.,  17,  61. 
V.  Parsliall,  120,  121,  712. 
V.  Randall,  417. 
Hardy  v.  Martin,  4^1.. 
Hare  v.  Surges,  47. 

V.  Shearwood,  484,  502. 
Harford  v.  Furrier,  257,  746,  747. 
Hargrave  v.  King,  341. 
Hargreaves  v.  Wright,  84. 
Harker  v.  Haverly,  610. 
Harnett  v.  Baker,  212,  420. 

V.  Yielding,    3,    47,  208,   217, 
218,  273,  402,  568. 
Harper  v.  Whitehead,  92. 
Harrell  v.  Kelly,  467. 
Harrington  v.  Harrington,  507. 
V.  Pinson,  103. 
V.  Wheeler,  626,  653. 
Harris  v.  Delahar,  444. 

V.  Kemble,  421,  422,  438,  440. 

V.  Kidwell,  662. 

V.  Knickerbacker,  122,  123,  363, 

373.  398. 
V.  Lloyd,  473. 
V.  Pepperel,  483. 
V.  Roof,  282. 
V.  Runnels,  286. 
V.  Smith,  444. 
V.  Tyson,  237,  414. 
Harrison  v.  Close,  248. 

V.  Deramus,  731. 
V.  Gardner,  508. 
V.  Guest,  452. 
V.  Howard,  514. 
V.  Lemon,  216. 
V.  Stewart,  93. 
V.  Town,  237. 
Harrocks  v.  Rigby,  162. 
Harrod  v.  Cowan,  482. 
Harry  v.  Davey,  80. 
Harsha  v.  Reid,  751,  753. 
Hart  V.  Brand,  165,  740. 
V.  Carroll,  360. 
V.  Herwig,  22,  66. 
V.  McClellan,  124,  366,  605. 
V.  Rensselaer   &    Saratoga  R.R. 

Co.,  296. 
V.  Woods,  334. 


Hartford    &  New  Haven    R.R.    Co.  v. 

Jackson,  174. 
Hartley  v.  Rice,  283. 

V.  Smith,  558. 
Hartzel  v.  Reiss,  446. 
Harvey  v.  Ashley,  588. 

V.  Grabham,  685. 

V.  Harvey,  520. 
Harvie  v.  Banks,  576. 
Harwood  v.  Tooke,  49. 
Haskell  v.  Allen,  191. 
Hasket  v.  Wootan,  287. 
Haslett  V.  Haslett,  378. 
Hastie  v.  Couturier,  254. 
Hatch  V.  Cobb,  641,  731,  734. 

V.  Hatch,  289. 
Hatcher  z/.  Hatcher,  125,  321,  356,  374. 
Hatton  V.  Gray,  267,  270,  323. 

V.  Johnson,  606. 
Hatztield  v.  Gulden,  282. 
Haugh  V.  Blythe,  395. 
Haughwort  v.  Murphy,  659,  725,727,728. 
Hauser  v.  Roth,  125. 
Haven  v.  Beidler  Manf.  Co.,  746. 
Havens  v.  Bliss,  563. 
Hawey  v.  Alexander,  TJ. 
Hawk  V.  Greensweig,  612. 
Hawkes  v.  Eastern  Counties  R.R.  Co., 

163,  228,  230,  265,  593. 
Hawkins  v.  Chace,  325,  331. 

V.  Holmes,  325,  328,  393. 
V.  Hunt,  350. 

V.  Palmer,  418.  ' 

Hawley  v.  Cramer,  465. 

V.  Jelly,  679. 

V.  Sheldon,  260. 
Hawralty  v.  Warren,  267,  472,  722. 
Hawthorn  v.  Bronson,  666. 
Haycraft  v.  Creasy,  420. 
Hayden  v.  Bucklin,  728. 
Haydock  v.  Stow,  315. 
Hayes   v.    Harmony   Grove  Cemetery, 

555.  556. 
V.  Kershow,  "j"],  247,  248. 
V.  Ward,  10. 
V.  Willio,  152. 
Haygarth  v.  Waring,  449. 
Haynes  v.  Covington,  296.  ^^^ 

V.  Hare,  484. 
Hays  V.  Hall,  96,  582. 

V.  HoUis,  2 |o. 
Haj'ward  v.  Purssey,  116. 
Haywood  v.   Cope,    7,    187,    221,    229, 

237,  409.  421. 
V.  Covington,  5. 
V.  Marsh,  467. 
Hazard  v.  Day,  312. 

V.  Irwin,  402,  417. 
V.  New  England  Mar,  Ins.  Co., 
174. 


XXVlll 


CASES    CITED. 


[The  figures  refer 
to  the  pages.] 


Hazelrig  71.  Hutson,  724." 
Head  v.  Muir,  521. 

V.  Providence  Ins.  Co.,  292. 
Heap  V.  Tonjje,  220. 
Heaphy  v.  Hill,  67 «. 
Hearne  v.  Tenant,  638. 
Heathcote  v.  North  Staffordshire  R.R. 

Co.,  148. 
Heather  v.  O'Neil,  94. 
Heckard  v.  Say  re,  637. 
Hedenberg  v.  Jones,  616,  660. 
Hedrick  v.  Hern,  356. 
Heilbron  v.  Bissell,  471. 
Heimburg  7k  Ismay,  544,  723, 
Helling  ?'.  Lumley,  234. 
Helsham  7a  Langley,  210,  488,  507. 
Hemingway  v.  Fernandes,  83. 
Hemphill  v.  Miller,  659. 
Henderson  v.  Dickey,  513. 

z>.  Hayes,  7,  216,  241. 

V.  Henderson,  544. 

V.  Hudson,  421. 

V.  Lacon,  432. 

7K  R.R.  Co.,  419. 
Hendrickson  v.  Hendrickson,  606. 

V.  Ivins,  483,  500. 
Henkle  v.  Royal  Exch.  Ass.   Co.,   507, 

514. 
Henlen  v.  Martin,  741. 
Henning  v.  U.  S.  Ins.  Co.,  682. 
Henry  v.  Corm,  665. 
7J.  Graddy,  700. 
V.  Jones,  640. 
V.  Liles,  167. 
Hensler  v.  Sefrin,  497,  542. 
Henty  v.  Schroder,  734. 
Hepburn  7/.  Auld,  564,  576,  631,  707. 

7J.  Dunlop,  564. 
Hercy  v.  Birch,  41,  42. 
Heriot's  Hospital  (Feoffees  of)  v.  Gib- 
son, 579. 
Hermann  v.  Hodges,  43. 
Heron  v.  Heron,  244. 
Herrin  v.  Butler,  394. 
Hersey  v.  Giblett,  89,  103,  195. 
Hertford  (Marquis  of)  v.  Boore,  652. 
Herv'ey  7/.  Audland,  247. 
Hesse  7/.  Briant,  215. 
Hester  v.  Hooker,  7. 
Helh  V.  Woodridge,  192,  347,  355. 
Heuer  v.  Rutkowski,  600. 
Hewitt  V.  Brown,  682. 
V.  Crane,  289. 
Hewlins  v.  Shippam,  386. 
Heyer  v.  Burgher,  53. 
Hibblethwaite  v.  M'Morine,  163. 
Hickey  v.  Drake,  405. 
Hickman  v.  Grines,  350. 
V.  Quinn,  459. 
Hicks  V.  Hankin,  335. 


Hicks  7'.  Whitmore,  336. 
Hidden  v.  Joran,  339,  340,  341. 
Higby  7).  Whittaker,  659. 
Higdon  V.  Thomas,  325. 
Higginbottom  v.  Short,  7. 
Higgins  V.  Samels,  420. 

V.  Senior,  112,  113. 
Higginson   v.    Clowes,    486,    505,    507, 

510. 
Hightower  v.  Smith,  545. 
Hill  V.  Barclay,  37,  620. 

V.  Brower,  402. 

V.  Buckley,  217,  272,  422,  437,  540, 
719,  720. 

V.  Bush,  481. 

V.  Cumberland  Valley  Mu.  Protec- 
tion Co.,  746. 

V.  Fiske,  567. 

V.  Gomme,   74,    76,    78,    264,  685, 
691. 

V.  Grigsby,  607,  609. 

V.  Hobart,  553,  614,  615,  695. 

V.  Paul,  loi. 

V.  Reifsnider,  136. 

V.  Ressegieu,  86. 
Hillary  v.  Waller,  195. 
Hills  V.  Croll,  144,  264. 

V.  Elliott,  343. 
Hilton  V.  Duncan,  748. 
7/.  Gilman,  196. 
Hinckley  v.  Smith,    93,    93,    543,    544, 

709. 
Hinde  v.  Gray,  148. 

V.  Whitehouse,  314,  334. 
Hindley  v.  Westmeath,  53. 
Hines  v.  Baine,  600. 
Hinkle  v.  Margerum,  542. 
Hinton  v.  Hinton,  85,  87,  453. 
Hipwell  V.  Knight,   597,  630,  631,  635, 

675- 
Hitchcock  V.  Giddings,  253,  490. 

7'.  Harrington,  560. 
Hitner's  Appeal,  53. 
Hoagland  v.  Latourette,  89,  726. 

V.  Segar,  281. 
Hoback  7/.  Kilgores,  197. 
Hobbs  V.  Hull,  54. 
Hobson  V.  Trevor,  27,  31,  49. 
Hodges  V.  Blagrave,  47. 

ex  parte,  599. 

V.  Howard,  316,  341. 

V.  Johnson,  652. 

V.  Spicer,  249. 
Hodgkinson  v.  Wyatt,  509. 
Hodgson  7/.  Hutchinson,  172. 

71.  Temple,  288. 
Hodson  V.  Coppard,  146. 
Hoen  V.  Simmons,  350,  576,  600. 
Hoffman  v.  Fett,  197,  382. 
Hoge  V.  Hoge,  341. 


{The  figures  refer 
to  the  pages.] 


CASES    CITED. 


XXIX 


Hogg  V.  Kirby,  440. 

V.  Wilkins,  349. 
Hoo-gart  V.  Scott,  271. 
Holbrook  v.  Armstrong,  395. 
Holden  v.  Hayn,  83,  95,  98,  682. 
Holland  v.  Anderson,  426,  732,  735. 

V.  Eyre,  176. 

V.  Hinsley,  247. 

V.  Holmes,  197,  552. 
Hollinda  v.  Shoop,  349. 
Hollingshead  v.  McKenzie,  129,  398. 
Hollis  V.  Chapman,  530, 
V.  Edwards,  370. 
V.  Whiteing,  338. 
Holman  v.  Bank  of  Norfolk,  316. 

V.  Crisvvell,  125,  552. 

V.  Johnson,  277,  288. 
Holme's  Appeal,  404,  420. 
Holmes  v.  Eastern  Counties  R.R.  Co., 

143,  144,  208,  624. 
Holme's  Estate  (Matter  of),  444. 
Holmes  v.  Evans,  188,  319. 

V.  Fresh,  237. 

V.  Holmes,  248,  383,  544. 

V.  Powell,  90. 
Holt  V.  Holt,  35,  88. 
V.  Rogers,  669. 
Holy  land,  ex  parte,  160. 
Home  Manuf.  Co.  v.  Chicago,  7. 
Homer  v.  Ashford,  148. 
Homfray  v.  Fothergill,  603. 
Honeyman  v.  Marryatt,  173,  315,  627. 
Hood  V.  Bowman,  366,  373. 

V.  New  York  &  New  Haven  R.R. 

Co.,  295,  296,  352. 
V.  Northeastern  R.R,  Co.,  18,  36. 
Hook  V.  Kinnear,  75. 
Hooker  v.  Pynchon,  28. 
Hoomes  v.  Smock,  287. 
Hooper,  ex  parte,  360,  366. 
Hooper  v.  Lanes,  203,  320. 

V.  Smart,  272,  570. 
Hoover  7/.  Calhoun,  93,  543,  576,  750. 

V.  Donally,  97. 
Hope  V.  Hope,  54,  65,  264,  532. 
Hopcraft  v.  Hickman,  190. 
Hopkins  v.  Oilman,  60,  185,  733. 

v.  Hopkins,  87. 

V.  Lee,  695. 

V.  Stump,  248. 
Hopper  V.  Hopper,  14. 
Hoppough  V.  Struble,  497. 
Hord  V.  Miller,  20. 
Horn  V.  Luddington,  366,  513,  731. 
Home  V.  Fonda,  729. 
V.  Fricke,  331. 
Horniblow  v.  Shirley,  708. 
Horsfall  v.  Garnett,  171,  176. 

V.  Thomas,  436. 
Hosier  v.  Read,  129. 


Hotchkiss  V.  Forston,  216. 
Hotsom  V.  Browne,  422. 
Hough  V.  Coughlan,  660. 

V.  Richardson,    416,    417,    419, 

433.  425- 
Houghton  V.  Lees,  49,  247. 
House  V.  Beatty,  670. 
V.  Dexter,  88. 
Houser  v.  Lament,  397. 
Houston  V.  Mathews,  380. 
Howard  v.  Burgen,  394. 

V.  Carpenter,  520. 

V.    First    Independent  Church 

of  Baltimore,  282. 
V.  Hopkins,  i"],  32,  103. 
V.  Hudson,  181. 
V.  Kimball,  533,  535,  709. 
V.  Moore,  7. 
V.  Okeover,  128. 
V.  Woodward,  29, 
Howarth  v.  Smith,  545. 
Howe  V.  Conley,  610,  711. 
V.  Hunt,  6,  739. 
V.  Nickerson,  62. 
V.  Rogers,  382,  663. 
7/.  Synge,  285. 
Howell  V.  George,  163,  165,  488. 
V.  Howell,  745. 
V.  Ransom,  289. 
Howes  V.  Barker,  719,  720. 
Howland  v.  Norris,  422,  555,  706,  708, 

742. 
Howson  V.  Hancock,  302. 
Hoy  V.  Hansbrough,  16,  19. 

V.  Smythies,  698. 
Hoyle  V.  Livesey,  259. 
Hoyt  TJ.  Tuxbury,  198,  616,  658. 
Hubbard  v.  Gray,  659. 
Hubbell  z^.  Courtney,  122. 

V.  Van    Schoening,   609,   645, 
654,  657. 
Huber  v.  Burke,  542. 
Hubert  v.  Treherne,  328. 

V.  Turner,  325,  328,  331. 
Huddlestone  v.  Briscoe,  171,  315,  317. 
Hudson  V.  Bartram,  134,  627,  676. 
V.  Buck,  550. 
V.  Hudson,  540. 
V.  King,  7,  247,  318. 
V.  Layton,  6. 
V.  Swift,  614. 
V.  Temple,  634. 
V.  Ware,  478. 
Huey  V.  Grinnell,  526. 
Huff  7/.  Jennings,  600. 

V.  Shepard,  187,  190,  199,  308. 
Huffman  v.  Fry,  501. 

V.  Hummer,  642,  687. 
Huffner  v.  Dickson,  660. 
Hughes  V.  Greene,  22. 


XXX 


CASES    CITED. 


[The  figures  refer- 
to  the  pages.] 


Hughes  V.  Hatchett,  563. 
V.  Jones,  711. 
71.  McKinsey,  574. 
V.  Metropolitan  R.R.  Co.,  37. 
V.  Parker,  196. 
V.  Statham,  43. 
V.  Wells,  520. 
Hugus  7'.  Walker,  387. 
Huldeman  v.  Chambers,  576. 
Hull  V.  Noble,  22,  631. 
V.  Peer,  129. 
V.  Sturdivant,  28,  674. 
Hulme  V.  Tenant,  92,  160. 
Hulmes  v.  Thorpe,  535,  582. 
Hultz  V.  V/right,  447. 
Humbard  v.  Humbard,  7. 
Humbert  v.  Trinity  Church,  118,  467. 
Hume  V.  Pocock,  420,  431,  542,  562. 
Humphreys  v.  Hollis,  74,  160. 
Hunt  V.  Barfield,  684. 
V.  Freeman,  483. 
V.  Hunt,  54,  145,  458. 
V.  Livermore,  614. 
V.  Moore,  417. 
V.  Roberts,  352. 
V.  Rousmanier,  3,  345,  474. 
V.  Saunders,  554. 
V.  Silk,  686,  695. 
V.  Turner,  341. 
Hunter  v.  Bales,  608,  742. 
V.  Bilyou,  502,  514. 
V.  Daniel,  119,  610,  696,  697. 
V.  Griffin,  455. 
V.  Hopkins,  686. 
V.  O'Neil,  553. 
Hunter  (Matter  of),  267,  270,  552. 
Huntingdon  v.  Knox,  113. 
Huntington  v.  Rogers,  224,  518. 
Hurley  v.  Brown,  319,  322,  541. 
Hurst  V.  Hurst,  521. 
Huss  V.  Morris,  499. 
Hussey  t'.  Hornepayne,  174,  177. 
Huston  V.  Cantril,  467. 
V.  Noble,  514. 
Hutchins  v.  Lee,  342. 
Hutchinson  v.  Hutchinson,  130. 

V.  McNutt,  25o,  594,  669. 
Hutton  V.  Duey,  53,  54. 
V.  Edgerton,  469. 
V.  Williams,  330,  335. 
Hyde  v.  Cooper,  199,  313,  314. 
V.  Skinner,  47,  591. 
V.  Tanner,  516. 
V.  Watts,  694. 
V.  Wrench,  172. 
Hylton  V.  Briscoe,  224. 
V.  Hylton,  289. 

Ide  V.  Gray,  439. 
Iggulden  V.  May,  46. 


Iglehart  v.  Gibson,  667. 
V.  Vail,  7,  668. 
Ilchester,  ex  parte,  685. 
Indiana  (State  of)  v.  Woram,  301. 
Indianapolis,  etc.,   R.R.  Co.  v.  Tyng,. 

416. 
Inge  V.  Lippingwell,  685. 
IngersoU  v.  Horton,  650. 
Ingles  V.  Patterson,  382. 
Ingram  v.  Thorp,  431,  432. 
Inman  v.  Griswold,  680. 
Ins.  Co.  V.  Union  Canal  Co.,  660. 
Irick  V.  Fulton,  489,  744. 
Jrnham  (Lord)  v.  Child,  100,  484,  503,. 

.  515- 
Irvin  V.  Bleaksley,  600. 

V.  Gregoi-y,  117,  604,  608,  611. 
%).  Thompson,  331. 
Irving  V.  Dekay,  472. 
Isenberg  v.  East  India  House  Co.,  140.. 
Ives  V.  Armstrong,  319,  664. 
V.  Hazard,  321,  323. 
V.  Metcalfe,  63. 
Ivory  V.  Murphy,  323. 
Izard  V.  Izard,  52. 

V.  May's  Landing  Water  Power- 
Co.,  732. 
V.  Middleton,  394. 


Jackson  v.  Ashton,  7,  8. 

V.  Cator,  484. 

V.  Corlear,  379. 

V.  Cutwright,  366. 

V.  Dyeling,  379. 

V.  Edwards,  656,  724. 

V.  Gray,  454. 

V.  Jackson,  194. 

V.  Kniffen,  472. 

V.  Lever,  258. 

V.  Ligon,   568,   571,    576,   631^ 
710,  715. 

V.  Lowe,  311. 

V.  McCoy,  89. 

V.  Moore,  349. 

V.  Petrie,  65,  66. 

V.  Pierce,  355. 

V.  Sedgwick,  683. 

V.  Sill,  472. 

V.  Town,  462. 

V.  Van  Busen,  326. 
Jackson's  Case,  103. 
Jacobs  V.  Locke,  86,  535,  701,  754. 

V.  Peterborough,  etc.,  R  R.  Co.^ 

326,  352. 
V.  Sale,  167. 
Jacox  V.  Clarke,  257. 
Jalabert  v.  Chandos  (Duke  of),  103. 
James  v.  Lichfield,  715. 
V.  Morgan,  449. 


[The  figures  refer 
to  the  pages.] 


CASES    CITED. 


XXXI 


James  v.  Patten,  327. 

V.  State  Bank,  402,  483. 
Jameson  v.  Stein,  181,  422. 
January  v.  Martin,  347. 
Jaques  v.  Miller,  314,  738. 

V.  Vigo  County,  690. 
Jaquith  v.  Hudson,  29. 
Jarman  v.  Davis,  545. 
Jarvis  v.  Duke,  402. 
Jay  V.  Richardson,  147. 
JetTerj's  v.  Fairs,  252. 
Jeffreys  v.  Jeffreys,  247,  548. 
Jenkins  v.  Eldredge,  338,  348. 

V.  Fahey,  565. 

V.  Fritz,  481. 

V.  Hogg,  335. 

V.  Parkinson,  25. 

V.  Pye,  289. 
Jennings  v.  Broughton,  402,  416,  424, 
430,  434,  443- 
V.  Brown,  285. 
Jervis  v.  Smith,  373,  734. 
Jervoise  v.  Northumberland  (Duke  of), 

547. 
Job  V.  Banister,  622. 
Johns  V.  Norris,  654. 
Johnson  v.  Bowden,  382. 

V.  Brooks,  37.5,  327,  329. 

V.  Conger,  60. 

V.  Covvn,  455. 

V.  Craig,  204. 

V.  Dodge,  308,  311,  450. 

V.  Glancy,  376,  734. 

V.  Gummins,  93. 

V.  Hanson,  354. 

V.  Hopkins,  613,  669. 

V.  Hubbell,  52,  217. 

V.  Johnson,  57,  185,  199,  527, 
704. 

V.  King,  178. 

V.  Legard,  87,  217,  271,  455. 

V.  McGruder,  382. 

V.  Rickett,  14,  19. 

V.  Ronald,  317. 

V.  Shrewsbury  &  Birmingham 
R.R.  Co.,  40,69,  102,  264, 
276. 

V.  Smart,  137. 

V.  Smith,  51. 

V.  Trinity  Church  Soc,  320. 

V.  Watson,  395. 

V.  Wyatt,  737. 

V.  Wygant,  609,  614. 
Johnston  v.  Fessler,  172,  174. 

V.  Hubbell,  350,  351. 

V.  Johnston,  350,  380,  387. 

V.  Mitchell,  660. 
Johnstone  v.  Hall,  146. 
Joice  V.  Taylor,  417. 
Jones  V.  Alley,  576. 


Jones  V,  Blalock,  62. 

V.  Bolles,  442. 

V.  Boston  Mills  Corp.,  60. 

V.  Boyd,  577,  608. 

V.  Caswell,  281,  463,  465. 

V.  Clifford,  491. 

V.  Evans,  274. 

V.  Gardiner,  553,  609. 

V.  Green,  29,  30. 

V.  Heavens,  29. 

V.  Hill,  457. 

V.  How,  105,  168. 

V.  Jones,  41,  51,  121,  741, 

V.  Lees,  229. 

V.  Littledale,  in,  112. 

V.  Lock,  340. 

V.  Lynde,  96. 

V.  M'Dougal,  341. 

V.  Mertin,  105. 

V.  Moore,  513. 

V.  Mudd,  743. 

V.  Munroe,  477. 

V.  Neale,  690. 

V.  Newhall,  12. 

V.  Noble,  260,  309,  636. 

V.  North,  45. 

V.  Pease,  378. 

V.  Petaluma  (City  of),  610. 

V,  Peterman,  369,  376. 

V.  Robbins  597,  642. 

V.  Roberts,  96,  576. 

V.  Roe,  48. 

V.  ^hackleford,  712. 

V.  Taylor,  250. 

V.  Waite,  54,  284. 
Jordan  v.  Fay,  204. 
V.  Jones,  164. 
V.  Sawkins,  100,  504,  688. 
V.  Volkenning,  458. 
Jordon  v.  Deaton,  204,  576, 
Joseph  V.  Holt,  308. 
Josey  V.  Rogers,  127. 
Joslyn  V.  Taylor,  554. 
Joynes  v.  Statham,  208,  475,  484,  508. 
Judd  V.  Mosely,  86. 
Judge  V.  Wilkins,  237,  449. 
Judson  V.  Wass,  553. 
Justice  V.  Croft,  19. 

%>.  Lang,  270,  325,  327. 
Juzan  V.  Toulmin,  240,  409,  424,  481. 


Kane  v.  Hood,  608. 
Karker  v.  Haverly,  602. 
Kauffman's  Appeal,  18,  117. 
Kay  V.  Watson,  351. 
Kearney  v.  Taylor,  465. 
Keating  v.  Price,  685. 
Kechnie  v.  Sterling,  746. 
Keegan  v.  Williams,  676,  726. 


XXXll 


CASES    CITED. 


[The  figures  refer 
to  the  pages.] 


Keisselbrack  7/.  Living-ston,  510,  514. 
Keith  V.  Purvis.  343. 
Kekewich  v.  Manning,  340. 
Kell  V.  Nokes,  137. 
Keller  v.  Fisher,  642,  645. 

V.  Lewis,  31,  668. 
Kelley  v.  Sheldon,  405. 
V.  Webster,  350. 
Kellog-  V.  Lavender,  600. 
Kellums  v.  Richardson,  369. 
Kelly  V.  Dee,  14. 

V.  Stanberry,  382. 
V.  Walsh,  251. 
Kelso  V.  Kelly,  60. 
Kelson  v.  Kelson,  462. 
Kemble  v.  Kean,  149,  206. 
Kemeys  v.  Proctor,  335. 
Kemp  V.  Humphreys,  635. 

V.  Sober,  146. 
Kempshall  v.  Stone,  731,  734. 
Kendall  v.  Almy,  199. 
Kennedy  7/.  Gouveia,  in. 

V.  Kennedy,  342,  441. 
V.  Lee,  188. 
V.  Umbaugh,  493. 
V.  Ware,  247. 
V.  Wolfolk,  567. 
Kenny  v.  Waxham,  18. 
Kensington  (Lord)  v.  Phillips,  186. 
Kent  7A  Carcaud,  539,  717. 

v.  Freehold  Land  &  Brickmaking 

Co.,  409,  438. 
V.  Ricards,  136. 
Kenworthy  v.  Schofield,  335,  336. 
Kercheval  v.  Swope,  642. 
Kerr  v.  Day,  269. 

V.  Purdy,  268,  610,  617. 
Kester  v.  Rockel,  742. 
Ketchum  v.  Buffalo  (City  of),  293. 
V.  Catlin,  481. 
V.  Stout,  167,  540,  719. 
Keyton  v.  Branford,  492. 
Kidder  7/.  Barr,  350,  356,  381. 
V.  Chamberlin,  237. 
V.  Hunt,  354. 
Kimball  v.  Tooke,  609. 
Kimberley  v.  Jennings,  143,   148,  224, 

225. 
Kimbrough  v.  Curtis,  82. 
V.  Lane,  287. 
Kimpton  v.  Eve,  142. 
Kinard  7/.  Hiers,  348. 
Kindley  v.  Gray,  561. 
Kine  v.  Balfe,  374,  399. 
King  V.  Baldwin,  289. 

V.  Bardeau,    189,    537,    700,  707, 

708. 
V.  Hamilton,   224,  227,  421,  483, 

563.  659,  669,  755. 
V.  Hamlet,  235. 


King  V.  Hanna,  394. 

V.  Knaj-)]),  411,  536,  576. 

V.  Morford,  7. 

V.  Ruckman,   188,  205,  604,  630, 

674.  712. 
V,  Thompson,  383,  387,  748,  750. 
V.  Trice,  1 18. 
V.  Whitely,  588. 
V.  Wilcox,  461. 
V.  Wilson,  198,  640,  674,  679,  706. 

715- 
V.  Wood,  189,  320. 
Kinkead  v.  Shrene,  609. 
Kintrea  v.  Preston,  197. 
Kip  V.  Norton,  379. 
Kirby  v.  Harrison,  606,  659. 
Kirk  V.  Bromley  Union,  25,  362. 
Kirksey  v.  Fike,  62. 

7/.  Kirksey,  398. 
Kisler  v.  Kisler,  339. 
Kitchen  v.  Coffin,  576. 

%K  Herring,  203. 
Kite  V.  Lumpkin,  481. 
Klyce  V.  Broyles,  612. 
KnatchbuU  v.  Grueber,  623,  705,  712. 
Knickerbocker  v.  Harris,  375,  612. 
Knight  V.  Bunn,  493. 

V.  Cooley,  173. 

V.  Crockford,  325,  328,  614. 

7/.  Majoribanks,  244. 
Knobb  V.  Lindsay,  242. 
Knoll  %!.  Harvey,  363,  375. 
Knollys  v.  Alcock,  103. 
Knott  V.  Stephens,  88,  96,  638. 
Knowles  v.  Haughton,  43,  275. 
V.  McCamly,  92,  164. 
Knowles'  Petition,  298. 
Knye  v.  Moore,  285. 
Koen  V.  White,  661,  669. 
Kostenbader  v.  Spotts,  548, 
Kraft  V.  De  Forest,  522. 
Kuckenbeiser  7'.  Beckert,  514. 
Kuelkamp  v.  Hidding,  426. 
Kusel  V.  W^atson,  186. 
Kyle  V.  Frost,  12. 

V.  Kavanaugh,  197. 
V.  Roberts,  330. 


Lacey,  ex  parte,  271. 
Lacon   v.  Mertins,  2>i 

398. 

Lacon  71.  Waters,  269. 
Laffan  v.  Nagle,  269. 
Lafferty  -u.  Jelly,  680. 
Laidlaw  7'.  Organ,  414,  441 
Laight  V.  Pell,  226,  420. 
Laing  tj.  McKee,  344. 
Laird  v.  Smith,  674. 
Lamare  v.  Dixon,  407. 


356,  365.   397, 


[The  figures  refer 
to  the  pages.] 


CASES    CITED. 


XXXlll 


Lamb  v.  Buckmiller,  512. 

V.  Harris,  481. 
Lammot  v.  Bowl)-,  478. 
Lampman  v.  Cochran,  29. 
Lancaster  v.  De  Trafford,  195. 

7).  Dolan,  462. 
Lancaster  &  Carlisle  R.R.  Co.  v.  North- 
western R.R.  Co.,  148,  149,  298. 
Lane  v.  Debenham,  696. 
V.  McLaughlin,  179. 
V.  Neilson,  353. 
V.  Newdigate,  38,  140. 
V.  Ready,  131. 
V.  Shackford,  354. 
Laner  v.  Lee,  519. 

Lanesborough  (Lady)  v.  Ockshott,  685. 
Lang  ?7.  McLaughlin,  311. 
Langdon  v.  Keith,  483. 

V.  Woolfolk,  89. 
Langford  v.  Pitt,  565. 
Langton  v.  Hughes,  288. 
Lanier  v.  Wyman,  493. 
Laning  v.  Cole,  327,  595. 
Lanning  v.  Tompkins,  600. 
Lansdowne  v.  Lansdowne,  479. 
Lantz  V.  Fry,  363. 
Lanz  V.  McLaughlin,  366. 
Lapham  v.  Whipple,  395. 
Larios  v.  Gurety,  6,  25. 
Larison  v.  Barb,  18. 
V.  Burt,  648. 
Larkin  v.  Rosse  (Lord),  711. 
Larkins  v.  Biddle,  476,  492. 

V.  Rhodes,  339. 
Larmon  v.  Jordan,  172. 
Lassen  -v.  Mitchell,  688. 
Lassence  v.  Tierney,  391. 
Lathrop  v.  Hoyt,  349. 
Latimer  v.  Aylesbury  &    Buckingham 

R.R.  Co.,  134. 
Lattin  v.  McCarty,  512. 
Lauderdale  v.  Hallock,  514. 
Lauer  v.  Lee,  686. 
Laughter's  Case,  168. 
Laurens  v.  Lucas,  555. 
Lavender  v.  Thomas,  78. 
Laverty  v.  Hall,  652. 

V.   Moore,    16,    103,    132,    616, 
725. 
Lavette  v.  Sage,  216. 
Law  V.  Grant,  419. 
V.  Henry,  389. 
Lawder  -v.  Blachford,  229. 
Lawe  V.  Hyde,  513. 
Lawley  v.  Hooper,  442. 
Lawrence  v.  Ball,  601. 

V.  Beaubien,  480. 
7/.  Dole,  553. 
V.  Dorsey,  248. 
V.  Lav/rence,  659. 


Lawrence  v.  Staigg,  496. 

V.  Taylor,  331,  332,  333. 
Lawrence's  Case,  436. 
Lawrenson  v.  Butler,  267,  272,  273,  520, 

714. 
Lawson  v.  McKenzie,  610. 
Lawton  v.  Campion,  56,  476. 
Lay  V.  Huber,  541. 
Laythoarp  v.  Bryant,  308,  323. 
Leach  v.  Forbes,  25,  252. 
Leader  v.  Moody,  6. 
Leake  v.  Morris,  338,  366. 
Lear  v.  Chouteau,  209,  247. 
Leavenworth  (City  of)  v.  Rankin,  294. 
Leavitt  v.  Blatchford,  285. 

V.  Palmer,  280,  483. 
Lechmere  v.  Brazier,  566,  627. 
Le  Couteulx  v,  Buffalo  (City  of),  293. 
Lee  V.  Durett,  97. 

V.  Fox,  429. 

V.  Howe,  707. 

V.  Kirby,  227,  229,  238,  243. 

V.  Lee,  249,  378. 
Leeper  v.  Lyon,  86. 
Lees  V.  Nuttall,  in,  329. 
Lefevre  v.  Lefevre,  386. 
Lefforge  v.  West,  31. 
Leg  V.  Huber,  543. 
Legal  V.  Miller,  505. 
Legard  v.  Johnson,  54. 
Leger  v.  Bonnaffe,  489. 
Legge  V.  Croker,  416. 
Leiard  v.  Smith,  607. 
Leigh  (Lord)  ii.  Ashburton  (Lord),  81. 
V.  Crump,  7,  224,  421,  535. 
V.  Huber,  561. 
Leitensdorfer  2/.  Delphy,  513. 
Leith  V.  Irvine,  286. 
Leland's  Appeal,  164. 
Lemayne  v.  Stanley,  326. 
Lennard  v.  Robinson,  in. 
Lennon  v.  Napper,  47. 
Leominster  Canal  Co.    v.  Shrewsbury 

&  Hereford  R.R.  Co.,  no,  297. 
Leonard  v.  Austin,  492. 

V.  Bates,  608. 
Lerned  v.  Wannemacher,  310. 
Leroux  v.  Brown,  65,  306. 
Lesesne  v.  Witte,  565. 
Leslie  v.  Tompson,  488,  719. 
Lester  v.  Jewett,  309,  608. 
V.  Kinne,  357. 
V.  Lester,  243,  375. 
Letcher  v.  Crosby,  369. 
Lett  V.  Brown,  608. 
Leuty  V.  Hillas,  481. 
Levy  V.  Brush,  74,  349. 
V.  Burgess,  683. 
V.  Coke,  179,  180. 
V.  Lindo,  137. 


XXXIV 


CASES    CITED. 


[The  figures  refer 
to  the  pages.] 


Levvers  v.  Shaftesbury  (Earl  oQ,  6,  737. 
Lewin  v.  Guest,  529. 
Lewis  V.  Bond,  619. 

V.  Davison,  276. 

V.  Herndon,  549. 

V.  Lech  mere    (Lord),     17,    245, 

633- 

V.  Madison,  103. 

V.  Madocks,  52. 

V.  McLemore,  417. 

V.  Reichy,  201. 

V.  Woods,  656. 

V.  Yale,  734. 
Leyland  v.  liling-vvorth,  416. 
Licett  V.  Stafford  &  Uttoxeter  R.R.  Co., 

134- 
Lies  V.  Stub,  484. 
Light  V.  Light,  478. 
Lightfoot  2/.  Heron,  104,  159,  212,  216. 
Light  Street  Bridge  Co.  ■y.  Bannon,  119. 
Lillie  V.  Legh,  738. 
Limondson  v.  Sweed,  398. 
Lincoln  v.  Arcedeckne,  550. 

V.  Wright,  338, 
Linderman  v.  Rinker,  5. 
Lindsay  v.  Lynch,  353,  361,  396. 

V.  Springer,  379. 
Lindsey  (Earl  oij  v.  Gt.  Northern  R.R. 
Co.,  105,  109,  166,  356. 
V.  Veasy,  402,  419. 
Lines  v.  Darden,  520. 
Lingen  v.  Simpson,  42. 
Linkous  v.  Cooper,  550. 
Linton  v.  Potts,  627,  645. 
Lippincott  v.  Stokes,  520. 
Lisk  V.  Sherman,  52. 
Lister  v.  Foxcroft,  350. 
Little  V.  O'Brien,  296,  302. 
V.  Paddleford,  553. 
V.  Pearson,  320. 
V.  Poole,  285. 
V.  Thurston,  690,  728. 
Littlefield  v.  Tinsley,  545,  550. 
Littlewort  v.  Davis,  295,  296. 
Livermore  v.  Aldrich,  339. 
Livesey  v.  Livesey,  129. 
Livingston  v.  Livingston,  360. 
V.  Painter,  14. 
V.  Peru  Iron  Co.,  412,  414. 
V.  Potts,  681. 
V.  Tompkins,  596. 
Lloyd  V.  Coliett,    137,    626,    627,   636, 
655,  660. 
V.  Lloyd,  588. 
V.  Loaring,  23. 
V.   London,  Chatham   &  Dover 

R.R.  Co.,  147. 
V.  Rippingda'e,  627. 
V.  Spillet,  339. 
V,  Wheatley,  19,  199. 


Lobdell  V.  Lobdell,  199,  388. 
Lockerson  v.  Stiilweil,  199. 
Locomotive  &:  Express  Co.  v.  Erie  R.R, 

Co.,  687. 
Logan  V.  Bond,  122. 

V.  McChord,  576,  672. 
V.  McGinnis,  52. 
V.  Weinholt,  52,  105. 
Lomax  v.  Ripley,  443. 
Lombard  v.  Chicago  Sinai   Congrega- 
tion, 567,  744,  747- 
London    &;    Birmingham    R.R.   Co.  v. 
Winter,  356,  506,  507,  510, 

517,  585- 
(City  of)  V.  Mitford,  633. 
(City  of)  V.  Nash,    33,    37,    68, 

231,  276,  730. 
(City  of)  V.  Southgate,  33,  34. 
Long  ?y.  Bowring,  28,  8[. 
V.  Brown,  163. 
V.  Colston,  5. 
V.  Duncan,  199,  362. 
V.  Fletcher,  711. 
V.  Hartwell,  602. 
V.  Warren,  435. 
Longworth  v.  Hunt,  467. 

V.   Taylor,    562,    631,    647, 

657. 
Lord  7/.  Stephens,  554,  582,  707,  746. 

V.  Underdunck,  88,  191,  373. 
Lorentz  v.  Lorentz,  243. 
Louder's  Appeal,  5. 
Lounsberry  v.  Locander,  196,  716. 
Love  V.  Cobb,  247,  567. 
V.  Lea,  429. 
V.  Sortwell,  579. 
Lovell  V.  Hicks,  408,  419. 
Lovelock  V.  Franklyn,  610. 
Low  V.  Heck,  1 24. 
V.  Innes,  148. 

V.  Treadwell,  219,  229,  653,  685. 
Lowe  V.  Bryant,  392. 

V.  Peers,  283. 
Lowell  ?/.  Boston  &  Lowell   R.R.  Co., 

278. 
Lowes  V.  Lush,  556,  590. 
Lowndes  v.  Chisholm,  478. 

V.  Lane,  434. 
Lowry  v.  Buffington,  7. 
V.  Mehaffy,  323. 
V.  Muldron,  545. 
V.  Spear,  48. 
Lowther  11.  Lowther,  23,  242,  245,  329. 
Lucas  V.  Burnett,  224. 

V.  Commerford,  33. 
V.  Hickman,  155. 
V.  James,  177,  178,  326,  538. 
Luckett  V.  Williamson,   347,   352,    565, 

570,  752. 
Lucy,  ex  parte,  477. 


[The  figures  refer 
to  the  pages. J 


CASES    CITED. 


XXXV 


Ludlow  V.  Cooper,  659. 
V.  Simoncl,  751. 
Lukey  zi.  Higgs,  226,  235. 

V.  O'Donnel,  243. 
Lumley  v.  Wagner,  138,  150,  225. 
Lupin  V.  Marie,  410. 
Luse  V,  Dietz,  261. 
Lyddal  v.  Weston,  546,  555. 
Lyde  v.  Mynn,  26,  50. 
Lyman  v.  Robinson,  170,  318. 

V.  United    Ins.    Co.,   493,    502, 

510.  514. 
V.  Utica  Ins.  Co.,  484. 
Lynch  v.  Brockhoff,  402. 

V.  Jennings,  605,  608. 
V.  Lynch,  342. 
Lyne  v.  Bank  of  Kentucky,  462. 
Lynes  v.  Hayden,  188,  204. 
Lyon  V.  Huntington  Bank,  447. 
V.  King,  394. 

V.  Richmond,  471,  472,  480. 
Lyons  v.  Blenkin,  78, 
Lysney  v.  Selby,  434. 
Lytton  V.  Gt.    Northern    R.R.  Co.,  36, 
531. 


Macclesfield  (Earl  of)  v.  Davis,  22,  23. 
Macdonough  v.  Gaynor,  155. 
Macgregor  v.  Official   Manager  of  the 

Dover  &  Deal  R.R.  Co.,  297. 
Macliier  %>.  Morse,  453. 
Mack  V.  Patchin,  214,  743. 
Mackay  ri.  Douglass,  461. 
Macknet  v.  Macknet,  478. 
Mackreth  v.  Marlar,  626. 

V.  Symmons,  27. 
Maclean  v.  Dunn,  332. 
Macnamara  2/.  Arthur,  137. 

V.  Williams,  82,  in. 
Macomb  v.  Wright,  334. 
Mactier  v.  Frith,  179,  180. 
Maddox  7/.  Rovve,  17. 

V.  Simmons,  237. 
Madeira  v.  Hopkins,  199. 
Madeley  v.  Booth,  711. 
Madison  v.  Chum,  230. 
Madox  V.  McQuean,  185,  659. 
Magee  2/.  Atkinson,  in,  112. 
Magennis  v.  Fallon,  422,  557,  675,  705, 

715,  716,  747. 
Magniac  v.  Thomson,  116. 
Magoffin  V.  Holt,  634,  645. 
Magram  %>.  Archbold,  31. 
Maguire  7/.  Smock,  282. 
Mahana  v.  Blunt,  375. 
Mahon  v.  Baker,  372. 
Main  v.  Melbourn,  365. 
Makepeace  v.  Harvard  College,  680. 
Malcolm  7/.  Andrews,  156. 


Maiden  v.  Menill,  518. 
Maleverer  v.  Redshavv,  285. 
Malins  v.  Bro  \n,  368. 

7'.  Freeman,  159,  484,  485,  487. 
Mallan  v.  May,  148. 
Mallory  7/.  Mallory,  122. 
Malmesbury  v.  Malniesbury,  492. 
Mann  v.  Betterley,  238. 
V.  Dunn,  663. 
V.  Palmer,  692. 
V.  Pearson,  536. 
V.  Stephens,  148. 
Manners  (Lord)  v.  Johnson,  138, 
Manning,  ex  parte,  744. 
Manser  v.  Back,  333,  485,  488,  510. 
Mansfield  v.  Childerhouse,  429. 

V.  Mansfield,  53. 
Manson  v.  Brimfield  Manf.  Co.,  544. 
Manz  V.  Beekman  Iron  Co.,  492. 
Marble  Co.  v.  Ripley,  7,  12,  71,  220,  264, 

575.  623. 
Marburg  v.  Cole,  576. 
Marcy  v.  Marcy,  395. 
Margetson  v.  Wright,  436. 
Margraf  7/.  Muir,  214,  224,  444,  743. 
Margram  v.  Archbold,  218. 
Marksbury  v.  Taylor,  281. 
Marlatt  v.  Warwick,  344. 
Marlow  v.  Smith,  546. 
Marsh  v.  P^alker,  418. 

V.  Fulton  County,  300. 

V.  Hyde,  310. 

V.  Milligan,  20,  163,  200. 

V.  Packer,  60. 

V.  Wyckoff,  543,  709. 
Marshall  v.  Bait.  &  Ohio  R.R.  Co.,  218. 
7/.  Broadhurst,  1 1  5. 
V.  Caldwell,  167,  604,  745. 
V.  CoUett,  471. 
"u.  Colman,  42. 
V.  Sladden,  in. 
Marston  v.  Humphrey,  659. 
Martin  v.  M'Biyde,  118. 

V.  Cotter,  409,  432,  555,  700. 

7/.  Drinkwaler,  472. 

V.  Hamlin,  472. 

V.  Martin,  342. 

V.  M'Cord,  387. 

7/.  Merritt,  613,  721. 

V.  Mitchell,    94,   160,    163,    164, 
210,  270. 

V.  Nutkin,  145. 

V.  Pycroft,  z;75,  508,  585. 

7/.  Terrell,  287. 

7/.  Tidwell,  5. 
Martyn  v.  Hind,  ^T. 
Marvm  v.  Bennett,  489,  540,  718,  720. 
Mason  v.  Armitage,  470,  486. 

V.  Blair,  355,  382. 

V.  Corder,  711. 


XXXVl 


CASES    CITED. 


[The  figures  refer 
to  the  pages.] 


Mason  v.  Crosby,  435. 

V.  Foster,  126. 

V.  Franklin,  80,  84. 

V.  Muncaster,  495. 

V.  Owens,  666. 

V.  Payne,  636. 

V.  Wallace,  381,  649. 
Massey?^.  Mcilwaine,  382. 
Massie  v.  Watts,  65. 
Masson  7v.  Bovet,  467. 
V.  Swan,  748. 
Masson's  Appeal,  727,  733. 
Masterson  v.  Pullen,  443. 
Masterton  7k  Beers,  415. 
Mastin  v.  Halley,  33,  190,  206,  264. 

V.  Marlow,  48. 
Mather  v.  Scoles,  609. 
Mathews  v.  Gillis,  642,  673. 

V.  Patterson,  569,  712. 
V.  Skinker,  292. 
Matteson  v.  Scoheld,  202,  317. 
Mattingly  7/.  Speak,  497. 
Mattocks  V.  Young,  617. 
Mauglin  v.  Perry,  270,  604,  634. 
Maulden  v.  Armstead,  96. 
Maunsell  v.  W^hite,  183. 
Mavor  v.  Pyne,  254. 
Maw  V.  Topham,  217,  274. 
Maxwell  v.  Kennedy,  118. 

V.  Pittinger,  429,  617. 
May  V.  Armstrong,  127. 

V.  Fenton,  120. 
Mayer  v.  Adrian,  314,  337,  544. 

V.  U.  S.,  172. 
Maynard  v.  Brown,  261. 
Mayor   and    City   Council    of  Bait.  v. 

Williams,  462. 
Mayor  of  London  v.  Southgate,  6,  734. 
Mayor  of  Norwich  v.  Norfolk  R.R.  Co., 

163,  292,  293,  294,  297. 
Mays  V.  Swope,  565. 
McAbee  v.  Randall,  127. 
McAlpine  v.  Swilt,  518. 
McAuley  v.  Bellinger,  282. 
McBride  v.  Wilkinson,   520. 
McBryde  v.  Weekes,  435, 468,  633,  634, 

642. 
McBurney  v.  Wellman,  342. 
McCallan  v.  Mortimer,  2S0. 
McCann  v.  Jones,  48. 

V.  Letcher,  499. 
V.  South,  etc.,  R.R.  Co.,  69. 
McCarger  v.  Rood,  385. 
McCarthy  7/.  Goold,  loi. 
McCarty  v.  Kyle,  224,  247. 

V.  Myers,  85. 
McClane  v.  White,  116. 
McClartey  v.  Gokey,  602,  646. 
McClellan  v.  Darrah,  383,  469,  659. 
McClintock  v.  Laing,  199,  653. 


McCloskey  v.  McCormick,  514. 
McClure  v.  Ashby,  468. 

V.  King,  636. 

V.  McClure,  53,  389. 

V.  Purcell,  653. 
McClurg's  Appeal,  44. 
McComas  v.  P^asley,  7,  600,  601. 
McComb  V.  Wright,  331. 
McConnell  v.  Brillhart,   308,  325,  331, 

712. 
McCorkle  v.  Brown,  358,  581. 
McCormick  v.  Malin,  241,  450. 
McCotter  v.  Lawrence,  78,  628. 
McCoy  V.  Hughes,  384. 
McCracken  v.  San  Francisco  (City  of), 

303- 
McCracken  v.  Wright,  48. 
McCray  v.  McCray,  389. 
McCrea  v.  Purmort,  270,  323. 
M'Creight  v.  Foster,  107. 
McCrocklin  v.  McCrocklin,  53. 
McCue  7J.  Johnston,  363. 
McCulloch  V.  Cowher,  341. 

V.  Dawson,  608,  627. 
V.  Eagle  Ins.  Co.,  180. 
V.  Gregory,  549,  559,  696. 
McDaniels  v.  Whitney,  529. 
McDermid  v.  McGregor,  668,  678. 
McDonald  v.  Crockett,  751. 
•  V.  Kimbrell,  604. 
V.  Kneeland,  680. 
V.  May,  348. 
V.  Starkey,  499,  514. 
V.  Trafton,  425. 
V.  Walker,  550. 
McElderry  v.  Shirley,  483. 
McFarland  v.  Hall,  369. 
McFarson's  Appeal,  308,  323. 
McFerran  v.  Taylor,  482,  534. 
McGalliard  v.  Aikin,  662. 
McGowan  v.  Remington,  21. 
McGowen  v.  West,  398. 
McGregor  v.  McGregor,  66. 
McGuire  v.  Stevens,  204,  318. 
M'Hoon  V.  Wilkerson,  610. 
McHugh  V.  W^ells,  599. 
Mclntire  v.  Bowden,  329. 
V.  Hughes,  247. 
V.  Johnson,  55,  682. 
Mclntyre  tj.  Trustees  of  Union  College,, 

118. 
M'lver  V.  Kyger,  435. 
McKay  v.  Carrington,  198,  654. 

V.  Simpson,  493. 
M'Kean  v.  Read,  568,  576,  704. 
McKee  v.  Beall,  74. 

V.  Phillips,  369. 
McKellip  V.  Mcllhenny.  386. 
McKennan  v.  Phillips,  53. 
McKenzie  t.  Hesketh,  714. 


[The  figures  refer 
to  the  pages.] 


CASES    CITED. 


XXXVll 


McKewan  v.  Sanderson,  460. 
McKibbin  v.  Brown,  185,  199. 
McKimball  v.  Robinson,  453. 
McKinley  v.  Watkins,  172. 
McKinney  v.  Andrews,  288,  436. 
V.  Pope,  453. 
V.  Watts,  576. 
McKleroy  v.  Tulane,  123,  612. 
McKnight  v.  Dunlop,  378. 
V.  Robbins,  97. 
McLane  v.  Elmer,  2. 
McLaughlin  v.  Shields,  646. 
McLaurie  v.  Barnes,  668. 
McLees  v.  Hale,  394. 
M'Mahon  v.  Spangler,  514. 
McMillin  v.  McMillin,  492,  668. 
McMorris  v.  Crawford,  16,  96,  726. 
McMuUen  ik  Vanzant,  22. 
McMurray  v.  St.  Louis,  etc.,  Co.,  471. 
McMurtrie  v.  Bennett,  7,  199,  260. 
McNaughten  v.  Partridge,  476. 
M'Niel  V.  Baird,  413. 
McNeil  V.  Magee,  60,  606. 
McPherson  v.  Kingsbaker,  461. 
McQueen  v.  Chouteau,  734. 

V.  Farquhar,  443,   554,    559, 
706. 
McShane  v.  Hazlehurst,  402. 
McTyer  ■z/.  Steele,  113. 
McWhorter  v.  McMahan,  7,   74,  224, 

324,  331,  563. 
McWilliams  v.  Long,  668. 
V.  Neely,  48. 
Meach  v.  Perry,  1 29. 
V.  Stone,  355. 
Mead  v.  Davison,  39. 
V.  Fox,  553. 
V.  Parker,  188,  322. 
V.  Randolph,  252. 
Meadows  v.  Meadows,  319,  335. 

V.  Tanner,  463,  464. 
Meason  v.  Kaine,  41,  261. 
Mechanics'    Bank     of     Alexandria   v. 

Lynn,  219,  231,  483,  587.- 
Mechanics'  Bank  of  Alexandria  v,  Se- 

ton,  20. 
Medbury  v.  Watson,  431. 
Medwin  v.  Sandham,  520. 
Meek  v.  Periy,  429. 

V.  Walthall,  167. 
Meeker  v.  Meeker,  7. 
Mehl  V.  Von  der  Wulbeke,  199. 
Mailers  v.  Devonshire  (Duke  of),  471. 
Mellish  V.  Motteux,  437,  540. 

V.  Robertson,  472. 
Memphis   &    Charleston    R.R.    Co.   v. 

Scruggs,  60,  63. 
Mendenhall  v.  Klinck,  594. 

V.  Treadvvay,  455. 
Mercer  v.  Stark,  247. 


Merchants'  Bank  v.  Mclntyre,  481. 
V.  Spaulding,  288. 
Merchants'  Trading  Co.  v.  Banner,  38. 
Mercier  v.  Mercier,  49,  56,  57. 
Meredith  v.  Macoss,  331. 

V.  Wynn,  586. 
Merethen  v.  Andrews,  355,  369. 
Merewether  v.  Shaw,  424. 
Merkle  v.  Wehrheim,  347. 
Merritt  v.  Brown,   209,   257,   344,   63i> 
659. 
V.  Clason,  309,  331,  335. 
Mestaer  v.  Gillespie,  338,  520,  528. 
Metcalf  2/.  Putnam,  346,  446. 
Metcalfe  v.  Pulvertorft,  728. 
Meux  V.  Humphries,  281. 
V.  Maltby,  85,  103. 
Mexborough    (Earl  of)  v.   Bovver,  133, 

142, 
Meyer  v.  Amidon,  420. 

V.  Barker,  1 1 1 ,  112, 
Meyers  v.  Forbes,  195. 

V.  Watson,  407. 
Meynell  v.  Surtees,    13,    102,  171,  174, 

176,  194. 
Mialhi  v.  Lassabe,  366,  367. 
Michael  v.  Michael,  444. 
Michaud  v.  Girod,  468. 
Michigan   (State  of)  v.  Phoenix  Bank, 

458. 
Micklethwaite  %'.  Nightingale,  504. 
Middlekauff  7/.  Barrick,  13. 
Middlesex  (Society  of)  v.  Davis,  295. 
Middleton  v.  Greenwood,  737,  738. 
Midland  Gt.  Western  Co.  of  Ireland  v. 

Johnson,  471. 
Mildmay  v.  Hungerford,  471,  To"]. 
Miles  V.  Miles,  381. 

V.  Stevens,  489. 
Milkman  v.  Ordway,  736,  752. 
Millard  v.  Ramsdell,  204. 
Miller  v.  Ball,  384. 

V.  Barber,  424. 
V.  Bear,  95,  670. 
V.  Campbell,  188,  204. 
V.  Chetwood,  717. 
V.  Gotten,  116,  199,  341,  362. 
V.  Henderson,  88,  446. 
V.  HenlaU;  659. 
V.  Hower,  369. 
V.  Miller,  426,  642,  656. 
V.  New  York,  674. 
V.  Whittier,  95,  96. 
Milligan  7/.  Cooke,   772,    536,   571,  701, 
716,  723. 
V.  Mitchell,  140, 
Milliken  v.  Milliken,  160. 
Mills  V.  Haywood,  647,  660. 
V.  Hunt,  378. 
V,  Lockwood,  514. 


XXXVlll 


CASES    CITED. 


[The  figures  refer 
to  the  pages.] 


Mills  V.  Metcalf,  117. 

V.  Van  Voorhis,  567,  582. 
Milne  v.  Gratrix,  60. 
Milnes  7a  Gery,  10,  58,  59,  192, 
Milward  v.  Thanet  (Earl  of),  627,  653, 

659. 
Mims  V.  Lockett,  381,  382,  383. 
Minard  v.  Mead,  113,  333. 
Minchin  v.  Nann,  746. 
Miner  v.  Bradley,  528. 

V.  Medbury,  437. 
Miners'  Ditch  Co.  v.  Zellenback,  291. 
Minet  v.  Leman,  546. 
Minns  v.  Morse,  398. 
Minor,  ex  parte,  255. 
Minturn  v.  Baylis,  199,  362. 

V.  Seymour,  7. 
Miranville  v.  Silverthorne,  375. 
Mitchell  V.  Bunch,  155. 

V.  Denson,  520. 

V.  Harris,  58. 

V.  Hazen,  553. 

V.  Long,  661,  669. 

V.  Nicholson,  483. 

V.  Reynolds,  148,  281. 

V.  Rome  R.R.  Co.,  295. 

V.  Shell,  86. 

V.  Smith,  285,  286. 

V.  Steward,  599. 

V.  Wilson,  636. 
Mitford  V.  Mitford,  589. 
Mittelholzer  v.  Fullerton,  276. 
Mi.x  V.  Balduc,  664,  673. 

V.  Beach,  125,  599,  604. 
v.  Hotchkiss,  1 18. 
Moale  V.  Buchanan,  356,  513. 
Modisett  v.  Johnson,  209,  240,  450. 
Moens  v.  Heyvvorth,  420. 
Moffat  V.  Winslovv,  468. 
Moliere  v.  Pennsylv.  Fire  Ins.  Co.,  494, 
Molineux's  Case,  4. 
Molloy  2'.  Eag-an,  518. 
Moncrief  7/.  Goldsborough,  464. 
Money  v.  Jorden,  181,  183. 
Monk  V.  Huskisson,  743,  744. 
Monro  v.   Taylor,   187,  402,   539,  631, 

658,  685. 
Monroe  v.  Cutter,  403. 
Montacute    (Viscountess)  v.    Maxwell, 

183,  390. 
Montague  v.  Flockton,  152. 
Montefiori  v.  Montefiori,  181. 
Montgomery  v.  McEwen,  513. 
V.  Morris,  199. 
V.  Reilly,  182. 
Monument    National    Bank   v.    Globe 

Works,  300. 
Moodie  v.  Reid,  520. 
Moody  V.  Smilli,  331. 
Moon  V.  Wilkerson,  82.   ' 


Mooney  v.  Miller,  435. 
Moore  v.  Adams,  277. 
V.  Burrows,  120. 
V.  Crofton,  247,  692. 
•57.  Edwards,  129,  130. 
V.  Fitzrandolph,  265. 
V.  Fitzwater,  55. 
V.  Foley,  47. 
V.  Higby,  125,  373. 
V.  Marrable,  678. 
V.  Murrah,  86. 
V.  Pierson,  388. 
V.  Platte  County,  29. 
%>.  Prance,  444. 
V.  Small,  355,  373. 
TJ.  Usher,  204. 
Moorehouse  v.  Coh'in,  52. 
Moote  V.  Scriven,  383,  644. 
Moran  v.  McLarty,  473, 
Morange  v.  Morris,  610. 
More  V.  Bonnett,  526. 
V.  Ellis,  54. 
V.  Morecomb,  169. 
V.  Skidmore,  576. 
Morehead  v.  Hunt,  464. 
Morehouse  7/.  Colvin,  183. 
Moreland  v.  Atchinson,  478. 
V.  Lemasters,  382. 
Morey  v.  Farmers'  Loan  &  Trust  Co., 

118,  601. 
Morgan  v.  Bergen,  331,  656,  659. 
V.  Bliss,  439. 
V.  Herrick,  615,  629. 
V.  Hoilord,  270. 
V.  Horseman,  285. 
V.  Milman,   193,  357,  358,  368. 
V.  Morgan,  86,  87,  541. 
V.  Rhodes,  96,  99. 
V.  Scott,  229,  450,  657. 
7/.  Smith,  353. 
V.  Stearns,  614,  617. 
Morganthau  v.  White,  212,  483. 
Morin  v.  Martz,  323. 
Morison  v.  Tumour,  325. 
Morley  v.  Cook,  137,  695,  696. 
Moroney  v.  Townsend,  564. 
Morphett  v.  Jones,  536,  360,  371,  373. 
Morrell  v.  Cooper,  130. 
Morrill  v.  Aden,  254. 
Morris  v.  Coleman,  45,  142,  144. 
V.  Debenham,  549. 
V.  Hoyt,  89,  103,  610,  670. 
V.  Lewis,  247. 
V.  McNeil,  577. 
V.  Philliber,  449. 
V.  Stephenson,  164. 
Morris  Canal  Co.  v.  Einmett,  540,  718. 
Morris    &    Essex    R.R.    Co.  v.  Sussex 

R.R.  Co..  295. 
Morrison  v.  Arnold,  86,  559. 


[The  figures  refer 
to  the  pages.] 


CASES    CITED. 


XXXIX 


Morrison  v.  Barrow,  546. 

V.  Lods,  439. 

V.  McLeod,  159,429, 

V.  Peay,  227,  385. 

V.  Rossignol,   199. 

V.  Wurtz,  256. 
Morrow  v.  Lawrence,  91,  118. 
Morse  v.  Faulkner,  51. 
V.  Martin,  520. 

V.  Merest,  59,  191,  338,  658,  675. 
Morss  V.  Elmendorf,  490,  536,  702,  707, 

731.  734.  735- 
Mortimer  v.  Bell,  463,  464. 

V.  Capper,  246,  258. 
V.  Cornwell,  331. 
V.  Orchard,  396. 
V.  Pritchard,  478. 
V.  Shorhall,  515. 
Mortlock  V.  Buller,  208,  217,  219,  272, 

536,  701,  708. 
Morton  v.  Dean,  310,  336. 
Mosby  V.  Wall,  483. 
Mosdel  V.  Middleton,  285. 
Mosely  v.  Virgin,  33,  34. 
Moss  V.  Anderson,  321. 
V.  Bainbrigge,  75. 
V.  Barton,  692. 
V.  Culver,  380,  381. 
V.  Hanson,  565. 
Mott  V.  Mott,  281. 

V.  U.  S.  Trust  Co.,  295. 
Mount  V.  Waite,  279. 
Mowatt  V.  Blake,  443. 
Moxhay  v.  Inderwick,  226,  235. 
Moyses  v.  Little,  96. 
Mulhallen  v.  Marum,  429, 
MulHns  V.  Trinder,  545,  546. 
Mumford  v.  Gething,  45,  148. 

V.  Whitney,  386. 
Mummery  v.  Paul,  43. 
Munch  V.  Shabel,  8. 
Mundorff  z'.  Howard,  341,  360. 

V.  Kilbourn,  52. 
Mundy  v.  Joliffe,  355,  370,    381,    396, 

397.  599.  625. 
Munford  v.  Wdson,  680. 
Munsell  v.  Loree,  199. 
Munson  v.  Hallowell,  468. 
Munt  V.  Shrewsbury  &  Chester  R.R. 

Co.,  299. 
Murdock  7'.  Anderson,  12,  322. 
Murly  V.  McDermott,  188. 
Murphy  v.  Hubert,  343. 

V.  Lockwood,  671. 
V.  McVicker,  16. 
V.  Rooney,  499, 
Murray  v.  Ballou,  726. 
V.  Dake,  448. 
V.  Harway,  686. 
V.  Jayne,  375. 


Murray  v.  Mann,  423. 

V.  Parker,  492,  515. 
Mussel  V.  Cooke,  307. 
Mussleman's  Appeal,  565. 
Musson  V.  Fales,  284. 
Muston  V.  Bradshaw,  82. 
Mutual  Life  &  Fire  Ins.  Co.  v.  McKel- 

way,  296. 
Myer  v.  Myer,  1 57. 
Myers  v.  De  Mier,  66. 

V.  Forbes,  184. 

V.  Watson,  421,  504,  579. 


Nagle  V.  Baylor,  159,  216,  487. 

V.  Newton,  733,  734. 
Nairne  v.  Prowse,  27. 
Nantes  v.  Corrock,  94. 
Napier  7/.  Darlington,  269,  536,  701. 
Natchez  (City  of)  v.  Vandervelde,  379. 
National  Bank  v.  Taylor,  292. 
National  Exchange  Co.  v.  Drew,  418, 

419.  423- 
National    P.  B.  Building  Soc,  in  re, 

301. 
Naylor  v.  Winch,  477. 
Neal  V.  Speigle,  449. 
Neale  v.  Mackenzie,  217,  272,  568,  590. 

V.  Neale,  377,  392. 
Neatherly  v.  Ripley,  355,  366,  382. 
Needham  v.  Kirkman,  105. 

V.  Smith,  105. 
Neill  V.  Morley,  160. 
Nelson  v.  Bridges,  703. 

V.  Carrington,  468,  719. 
V.  Dunn,  127. 
V.  Hagerstown  Bank,  668. 
V.  Wood,  445. 
V.  Worrall,  339. 
Nelthorpe  T'.  Holgate,  79,  98,  in,  536, 

571,  698,  700,  702,  714. 
Nesbit  V.  Moore,  16,  657. 
Nesbitt  V.  Meyer,  259. 
Nesham  v.  Selby,  317. 
Neufville  v.  Stuart,  178. 
Neves  v.  Scott,  588. 
Neville  v.  Merchants'  Ins.  Co.,  185. 

V.  Wilkinson,  181,406. 
Nevius  V.  Dunlap,  484,  493. 
New   Barbadoes   Toll    Bridge    Co.   v. 

Vreeland,  103,  121,  650. 
Newberry  v.  James,  43,  68,  143. 
New  Brunswick,  etc.,  R.R.  Co.  v.  Cony- 

beare,  416,  418,  425. 
New  Brunswick,  etc.,  Co.  v.  Mugger- 

idge,  25,  42. 
Newcomb  v.  Clarke,  113. 
Newcomer  v.  Kline,  492. 
Newham  v.  May,  704,  731. 
Newman  v.  Meek,  136,  237,  245,  450. 


xl 


CASES    CITED. 


[The  figures  refer 
to  the  pages.] 


Newman?/.  Newman,  285. 

T.  Rogers,  631. 
Newmarch  v.  Brandling,  141. 
Newsom  7j.  Bufferlow,  496. 

V.  Davis,  203. 
Newton  v.  Brownson,  66. 

V.  Swazey,  86,  130,  381,  399. 
New  Vork  Centr.  Ins.  Co.  v.  National 

Protection  Ins.  Co.,  329. 
New  York  Firemen's  Ins.  Co.  v.  Ely, 

296. 
New  York  Firemen's   Ins.  Co.  v.  Stur- 

ges,  296. 
New  York  Ice  Co.  v.  Northwestern  Ins. 

Co.,  512. 
Nichol  V.  Ridley,  335. 
NichoU  V.  Jones,  94. 
Nichols  V.  Johnson,  308,  336. 
V.  Nichols,  453. 
V.  Pinner,  409. 
V.  Stratton,  45. 
V.  Williams,  195,  206. 
Nicholson  v.  Knapp,   135. 
v.  Mifflin,  331. 
Nickels  v.  Hancock,  63,  230,  523. 
Nickleson  v.  Wilson,  287. 
Nicol  V.  Carr,   541. 
Nicoll  V.  N.  Y.  &  Erie  R.R.  Co.,  594. 
Nims  V.  Vaughn,  230. 
Noah  V.  Webb,  281. 
Noale  V.  Buchanan,  312. 
Noble  V.  Gookins,  536,  540,  718. 
Nobles  V.  Bates,  29. 
Noel  V.  Horton,  425. 
Nokes  V.   Kilmorey  (Lord),  633,    640, 

642. 
Noonan  v,  Lee,  8. 

V.  Orton,  599. 
Norfleet  v.  Southall,  191,  192. 
Norris  v.  Jackson,  738. 

V.  Knox,  654. 
North  V.  Ansell,  588. 
North  British  R.R.  Co.  v.  Tod,  580. 
North  V.  Forest,  359. 
Northrup  v.  Boone,  384. 

V.  Northrup,  609,  614. 
Norton  v.  Herron,  iii. 
V.  Mallory,  445. 
V.  Mascall,  62. 
V.  Preston,  354. 
V.  Simmes,  285. 
V.  White,  89. 
Nott  V.  Ricard,  641. 
Nouaille  v.  Flight,  716. 
Noyes  z/.  Marsh,  12,  58,  117. 
Nunn  V.  Truscott,  621. 
Nurse  v.  Seymour  (Lord),  580. 
Nutbrown  v.  Thornton,  21,  24. 
Nye  V.  Moseley,  285. 
V.  Taggart,  355. 


Oakes  v.  Turquand,  408. 
Oakley  v.  Ballard,  688. 
Oberlander  v.  Spiess,  420. 
Obernyce  v.  Ohertz,  544. 
O'Brien  v.  Pentz,  8,  199,  260,  576. 
O'Connor  v.  Spaight,  684. 
Odell  v.  Montross,  366. 

V.  Morin,  199,  208. 
Odessa  Tramways  Co.  v.  Mendel,  452. 
Odineal  v.  Barry,  282, 
O'Donnell  v.  Leeman,  314. 
O'Fallon  t.  Kennerly,  653. 
Ogden  V.  Fossick,  40. 
V.  Ogden,  26. 
Ogilvie  V.  Foljambe,  1S8,  198,  308,  325. 

V.  Ogilvie,  52. 
O'Herlihy  v.  Hedges,  100,  350,  355,  366, 

374.  383- 
Ohio  V.  Baum,  185,  260. 
O'Kane  7/.  Kiser,  608,  627. 
Okill  V.  Whittaker,  482. 
Old  Colony  R.R.  Co.  v.  Evans,  18,  270, 

323-  491- 
Oldfield  7^.  Round,  534,  555. 
Oliver  t/.  Croswell,  165,  728. 
1'.  Hallam,  744. 
V.  Rowland,  447. 
Olney  v.  Eaton,  65. 
Onions  v.  Cohen,  264,  572. 
Ontario  Bank  v.  Root,  398. 
Ord  V.  Johnston,  13,  247,  264. 

v.  Noel,  218. 
Oregon  Steam  Navigation  Co.  v.  Win- 

sor,  281,  675. 
O'Reilly  v.  Thompson,  383,  393. 
Oriental  Steam  Co.  v.  Briggs,  25. 
Orman  v.  Merrill,  581. 
Orme  v.  Broughton,  695. 
V.  McPherson,  155. 
Ormond  (Lord)  v.  Anderson,  195,  267. 
Ormrod  v.  Huth,  420. 
Ormsby  v.  Hunton,  247. 
O'Rourke  7'.  Percival,  274. 
Orr  TJ.  Brown,  12. 

V.  Irwin,  66. 

V.  Zimmerman,  31. 
Osbaldiston  v.  Askew,  710. 

V.  Simpson,  287. 
Osborne  v.  Bremar,  569,  662,  742. 
V.  Phelps,  363,  510. 
V.  Williams,  279. 
Osgood  V.  Franklin,  240,  244,  449. 

V.  Strode,  76. 
Osipee  Manf.  Co.  v.  Canney,  299. 
Osmond  v.  Fitzroy,  160. 
Osterhout  v.  Shoem.aker,  560. 
Oswald  V.  McGehee,  417. 
Otway  V.  Braithwaite,  270. 
Outenhouse  v.  Burleson,  382. 
Overbee  v.  Thrasher,  63. 


[The  figures  refer 
to  the  pages.] 


CASES    CITED. 


xli 


Overton  v.  Tracy,  345. 
Owen  V.  Davies,  160,  745. 

V,  Frink,  84. 

V.  Owen,  256. 

V.  Thomas,  187,  188. 
Owings  V.  Baldwin,  360,  541. 
V.  Hall,  118. 
V.  Morgan,  205. 
Owing's  Case,  444. 
Oxford  Iron  Co.  v.  Spradley,  295. 
Oxwick  z'.  Brockett,  518. 


Pacific  R.R.  Co.  v.  Seely,  282,  296. 
Padwick  v.  Piatt,  79. 
Page  V.  Adams,  695. 
V.  Bent,  423. 
V.  Broom,  700. 
V.  Greeley,  119,  198,  553. 
Pain  V.  Coombs,  371,  377,  599,  624. 
Paine  v.  Hutchinson,  24,  25. 

V.  Meller,  256,  258,  746,  747, 
Painter  v.  Newby,  698,  716. 
Palmer  v.  Ford,  31. 

V.  Graham,  22. 
V.  Lawrence,  301. 
V.  Richardson,  375. 
V.  Scott,  179,  267. 
V.  Temple,  198. 
Parham  v.  Parham,  500. 

V.  Randolph,  437,  704. 
Paris  Chocolate  Co.  v.  Crystal  Palace 

Co.,  134,  148,  194,  208,  693. 
Parish  v.  Koons,  204,  323,  331. 
V.  Oldham,  12. 
V.  Wheeler,  300. 
Park  V.  Chadwick,  446. 

V.  Johnson,  123,  132,  404,  517. 
Parke  v.  Leewright,  366. 
Parken  v.  Whitby,  62,  277,  507, 
Parker  v.  Barker,  686. 
V.  Bergen,  527. 
V.  Bloxam,  468. 
V.  Bodley,  318. 
V.  Carter,  ']'] . 
V.  Frith,  633. 
V.  Garrison,  20. 
V.  McAllister,  606. 
V.  Palmer,  220. 
V.  Parmele,  553,  609,  614. 
V.  Sergeant,  179. 
V.  Smith.  393,  394. 
V.  Taswell,  202. 
V.  Wells,  366. 
Parkham  v.  McCrary,  468. 
Parkhurst  t/.  Van  Cortlandt,   267,   314, 

363,  384,  731. 
Parkin  v.  Thorold,  628,  636,  638,  640, 

678. 
Parkinson  v.  Lee,  538. 


Parks  V.  Boston,  298. 

V.  Chadwick,  447. 
z>.  Wilson,  27. 
Parrill  v.  McKinley,  380. 
Parsell  v.  Stryker,  52. 
Parsons  v.  Gilbert,  564. 

V.  Thompson,  277,  282. 
Paschall  v.  Hinderer,  652. 
V.  Passmore,  596. 
Passmore  v.  Moore,  578. 
Patchin  v.  Doolittle,  298. 
Paton  V.  Brebner,  716. 
V.  Rogers,  743. 
V.  Stewart,  279. 
Patrick  v.  Horton,  204. 
Patten  v.  Moore,  89. 
Patterson  v.  Bloomer,  479. 

V.  Copeland,  382,  385. 
V.  Cunningham,  354. 
V.  Horn,  349. 
V,  Long,  84,  538,  716. 
V.  Martz,  217,  232,  664. 
V.  Yeaton,  353. 
Patton  V.  Develin,  309. 
V.  M'Clure,  352. 
V.  Taylor,  560. 
Paul  V.  Meservey,  681. 
Paxton  V.  Newton,  33,  38. 
Payne  v.  Banner,  633. 

V.  Graves,  618,  659. 
V.  Meller,  219. 
Payson  v.  West,  354. 
Peacock  7/.  Pen  son,    80,    81,    234,    40! 
580,  700. 
V.  Tompkins,  120. 
Peake,  ex  parte,  27,  221. 
Pearce  v.  Madison,  296. 

V.  Watts,  131,  204,  205. 
Pearett  v.  Shawbhut,  409. 
Pearis  v.  Covilland,  637 
Pearne  7'.  Lisle,  23. 
Pearson  v.  Darrington,  5. 
V.  East,  125,  373. 
Peck  V.  Brighton,  664. 
Peckham  v.  Barker,  356,  383. 
Pedens  v.  Owens,  719. 
Peele,  ex  parte,  74. 
Peeler  7/.  Levy,  12,  163,  714,  722,  732. 
Pegg  V.  Wisden,  641. 
Pegler  v.  White,  234. 
Peifer  v.  Landis,  369. 
Peirce  v.  Corf,  336. 
Pellecat  %>.  Angell,  288. 
Peltz  V.  Eichele,  281. 
Pember  v.  Mathews,  338,  50S. 
Pemberton  v.  Johnson,  93. 
Pembroke  v.  Thorpe,  35,  230,  393. 
Pendleton  v.  Dalton,  491. 

7>.  Galloway,  467, 
Penfield  v.  Penfield,  257,  594. 


xlii 


CASES    CITED. 


[The  figures  refer 
to  the  pages.] 


Pengall  (Lord)  7'.  Ross,  366,  384. 
Penn  v.  Baltimore  (Lord),  66. 

V.  Hayward,  66. 
Pennell  v,  Wilson,  493. 
Penniman  v.  Hartshorn,  270,  325. 

V.  Rodman,  61. 
Pennock  v.  Ela,  642,  657. 
V.  Freeman,  88. 
Pennock's  Appeal,  463. 
Pennsylv,  etc.,  Co.  v.  Dandridge,  292, 

296. 
Pennsyh'.  Co.  7/.  Delaware  Co.,  11. 
Penny  v.  Martin,  481. 
Pentz  V.  Stanton,  333. 
People  V.  Trustees  of  Geneva  College, 
296. 
V.  Utica  Ins.  Co.,  296. 
Perkins  v.  Dickinson,  499. 
V.  Ede,  709. 

V.  Hadsell,  268,  323,  382,  652. 
V.  McGavock,  414, 
V.  Thornton,  588. 
V.  Washington  Ins.  Co.,  39. 
V.  Wright,  7,  231,  421,  518. 
Perry  v.  Pearson,  507. 
V.  Truefit,  440. 
Persse  v.  Persse,  50. 
Peru  Iron  Co.,  ex  parte,  295. 
Peru  V.  Turner,  174. 
Peter  v.  Compton,  394. 

V.  Nicolls,  558. 
Peters  v.  Delaplaine,  7,  628,  654,  669. 
V.  Florence,  471. 
V.  Jones,  88. 
V.  McKeon,  743. 
V.  Mortimer,  453. 
V.  Smith,  459. 

V.  Westbrough  (Inhabs.  oi),  394. 
Peterson  v.  Dickey,  694. 

V.  Grover,  470,  482. 
Peto  V.  Brighton,  etc.,  R.R.  Co.,  143. 
Petray  v.  Howell,  357. 
Petre  v.  Duncombe,  81. 

(Lord)  V.  Eastern  Counties  R.R. 
Co.,  109. 
Petrick  v.  Ashcroft,  362, 

V.  Petrick,  360. 
Petrie  v.  Wright,  443. 
Pettes  V.  Bank  of  Whitehall,  475. 
Pettibone  v.  Stevens,  444. 
Pettus  V.  Smith,  468. 
Petty  V.  Malier,  512. 
Peyton  v.  Rose,  5 1 3. 
Pfiffner  v.  Stillwater  &  St.  Paul  R.R, 

Co.,  382. 
Phalen  v.  Clark,  442,  468. 
Phelps  V.  111.  Centr.  R.R.  Co.,  607,  635 

V.  Seely,  686. 
Philadelphia,  etc.,  R.R.  Co.  v.  Lehigh 
etc.,  Co.,  165,  191. 


Phillimore  v.  Barry,  326. 
Phillips  V.  Berger,  19,  56. 

V.  Buckingham  (Duke  of),  100. 
V.  Edwards,  94. 
V.  Gorham,  512. 
V.  Graves,  93. 
V.  Hollister,  417. 
V.  Homfray,  412. 
V.  Hooker,  321. 
V.  Medbury,  283. 
V.  Moore,  429. 
V.  Soule,  581. 
V.  Stauch,  150,  161,  710. 
V.  Sylvester,  707,  744. 
V.  Thompson,  362,  363,  731. 
Phillipson  v.  Gibbon,  562. 
Philpot  7'.  Walcot,  390. 
Philpott  V.  Elliott,  345,  510,  517. 
Phippin  V.  Stickney,  465,  466. 
Phipps  V.  Buckman,  424. 

V.  Child,  583. 
Phoenix  Ins.  Co.  v.  Gumee,  519. 
Phyfe  V.  Wardell,  12,  18,  47,  364,  446. 
Physician's  Case,  TJ. 
Piatt  V.  Hubbel,  379. 

V.  Oliver,  466. 
Pickering  v.  Dowson,  540. 

V.  Ely  (Bishop  of),  40,  265. 
V.  Pickering,  7,  56,  654. 
Picket  V.  Johns,  54. 
Pickett  V.  Loggon,  454. 

V.  Merchants'   National  Bank, 
195,  492. 
Picot  V.  Douglass,  693. 
Pidding  v.  How,  440. 
Pidgin  V.  Cram,  53. 
Pierce  v.  Catron,  363. 
V.  Dorr,  680. 
V.  Paine,  395. 
V.  W^oodward,  281. 
Piercy  7/.  Adams,  122. 
Piers  V.  Lambert,  709. 
Pigg  V.  Corder,  7,  200,  660. 
Pike  V.  Morey,  369. 

V.  Vigers,  433,  443. 
Pilcher  v.  Smith,  748. 
Pillow  V.  Pillow,  467,  653. 
Pinckard  v.  Pinckard,  371. 
Pincke   v.    Curteis,    18,   137,  618,  628, 

675,  6-]-]. 
Pinckney  %>.  Hagadom,  338,  645. 
Pingree  v.  Coffin,  65,  754. 
Pinkett  v.  Wright,  42. 
Pinnock  v.  Clough,  349. 
Pipkin  V.  Allen,  686. 

V.  James,  319,  541. 
Pitcaim   v.  Ogbourne,  484,    503,    512, 

515- 
Pitcher  v.  Hennessey,  489. 
Pitt  V.  Smith,  216. 


[The  figures  refer 
to  the  pages.] 


CASES    CITED. 


xliii 


Pittinger  7/.  Pittinger,  216. 
Pitts  V.  Cable,  117. 
Planque  v.  Cuesnon,  514. 
Plant  V.  Gunn,  288. 
Piatt  V.  Maples,  249. 
V.  Oliver,  281. 
Playford  v.  Playford,  235,  244. 
Pleasants  v.  Ross,  521, 
Plummer  v.  Keppler,  7,  402. 

V.  Owens,  320. 
Poag  V.  Sandifer,  374. 
Podmore  v.  Gunning,  52,  338. 
Poe  V.  Duck,  685. 
Point  Street  Iron  Works  v.  Simmons, 

494. 
Poland  V.  O'Connor,  374. 
Pole  V.  Somers  (Lord),  472. 
Polhill  V.  Walter,  424,  439. 
Pollak  V.  Gregory,  287. 
Pollard  V.  Clayton,  10,  21,  40,  143,  633, 

660. 
Pollard  V.  Rogers,  413. 
Pomeroy  v.  Drury,  653. 
Ponce  •y.  McWhorter,  355.' 
Poole  V.  Hill,  610. 

V.  Middleton,  25. 
V.  Shergold,  527,  570,  706,  746.^ 
Pooley  V.  Budd,  19,  22. 
Poore  V.  Price,  442. 
Poorman  v.  Kilgore,  387. 
Pope  V.  Garland,    196,  415,   438,    534, 

538. 
V.  Henry,  386. 
V.  Roots,  258. 
V.  Wilson,  458. 
Popham  V.  Bampfeild,  598. 
Poplett  V.  Stockdale,  285. 
Portarlington  (Lord)  v.  Soulby,  65. 
Port  Clinton  R.R.  Co.  v.  Cleveland  & 

Toledo  R.R.  Co.,  71. 
Porter?/.  Dougherty,  635. 
V.  Noyes,  553. 
V.  Spencer,  156. 
V.  Vaughn,  681. 
V.  Worthington,  66. 
Portland,    etc.,    R.R.    Co.    v.    Grand 

Trunk  R.R.  Co.,  583. 
Portman  v.  Mill,  555. 
Portmore  (Lord)  v.  Morris,  484,  502. 
Portmore  (Earl  of)  v.  Taylor,  235, 
Port  Royal  R.R.  Co.  v.  Hammond,  67. 
Post  V.  Leet,  492. 
Potter  V.  Commrs.  of  Revenue,  44. 
V.  Dougherty,  232. 
V.  Duffield,  190. 
V.  Ellice,  85. 
V.  Everett,  237,  238. 
V.  Jacobs,  382,  384,  677. 
V.  Potter,  397. 
V.  Saunders,  89,  103,  180,  542. 


Potter  V.  Tuttle,  197,  597,  635. 
Potts  V.  Thames  Haven  Co.,  90. 

V.  Whitehead,  179,  184,  187,  617, 
628. 
Powell  V.  Central  Plank  Road  Co.,  116. 
V.  Conant,  545,  550. 
V.  Dillon,  309. 
Powell  Duffryn  Steam  Coal  Co.  v.  Taff 

Vale  R.R.  Co.,  69. 
Powell  V.  Elliot,  420,  432,  707. 
V.  Knowler,  280,  287. 
V,  Lloyd,  133,  590. 
V.  Lovegrove,  356. 
V.  Martyr,  742. 
V.  Monson    &    Brimfield    Manf. 

Co.,  553. 
V.  Smith,  472. 
V.  Young,  89. 
Powelton  Coal  Co.  v.  McShane,  430. 
Power's  Appeal,  48. 
Powers  V.  Bridges,  614. 
V.  Hale,  243. 
V.  Mayo,  422. 
Powney  v.  Blomberg,  286. 
Prater  7/.  Miller,  7,  191,  208. 
Pratt  V.  Adams,  275. 
V.  Brett,  142. 
V.  Carroll,  421,  654,  662. 
V.  Eby,  550. 

V.  Law,  219,  631,  701,  731,  752. 
7/.  Morrow,  687. 
V.  Thornton,  289. 
Pray  v.  Burbank,  286. 
Preble  v.  Boghurst,  31,  228. 
Prendergast  -u.  Eyre,  706. 

V.  Turton,  633. 
Prentice  v.  Achorn,  159,  216,  429, 

V.  Betteley,  631. 
Prescott  V.  Truman,  544. 
Preston   v.   Liverpool,   Manchester   & 

Newcastle  R.R.  Co.,  109,  no. 
Preston  v.  Preston,  572,  668. 

V.  Whitcomb,  554. 
Prewitt  V.  Jenkins,  1 17. 
Price  V.  Assheton,  183,  197,  590,  693. 
V.  Berrington,  116. 
V.  Coombs,  623. 
V.  Corp.  of  Penzance,  36. 
V.  Durin,  336,  338. 
V.  Dyer,  441,  473,   503,  504,  505, 

685,  688,  707. 
V.  Gaskins,  650. 
V.  Griffith,  189,  526. 
V.  Lea,  378. 
V.  Macaulay,  420,  437. 
V.  McGown,  681. 
V.  Strange.  551. 
V.  Winston,  56. 
Primm  v.  Barton,  645, 
Prince  v.  Griffin,  635. 


xliv 


CASES    CITED. 


[The  figures  refer 
to  the  pages.]  ^ 


Prince    of  Wales    Assurance    Co.    v. 

Palmer,  443. 
Pringle  v.  Samuel,  430. 
Printup  V.  Mitchell,  362. 
Pritcharcl  v.  Ovey,  186. 

V.  Todd,  645,  695. 
Proby  V.  Lander,  520. 
Propert  v.  Parker,  325. 
Prosser  •J'.  Edmonds,  loi. 

V.  Watts,  557. 
Prothero  v.  Phelps,  137,  703,  732. 
Prothro  v.  Smith,  614,  640,  678. 
Providence  (City  of)  v.  Miller,  in. 
Provost  7/.  Rebman,  501. 
Pryer  v.  Tribble,  58. 
Pryse  v.  Cambrian  R.R.  Co.,  192. 
Pugh  V.  Chesseldine,  499,  553. 

V.  Good,  369. 
Pujol  V.  McKinlay,  522. 
Pullen  V.  Ready,  56,  471, 
Pulliam  V.  Owen,  7. 
Pulsford  V.  Richards,  417,  422. 
Pulvertoft  V.  Pulvertoft,  "jd,  462. 
Pumpelly  v.  Phelps,  214,  723. 
Purcell  V.  Miner,  357. 
Purinton   v.   Northern    111.    R.R.    Co., 

203. 
Pusey  V.  Desbouvrie,  410,  477. 

V.  Pusey,  23. 
Putnam  v.  Ritchie,  749. 
Puttmann  v.  Haltey,  203,  351. 
Pyke  V.  Northwood,  134. 

V.  Pyke,  588. 

V.  Williams,  371. 
Pym  V.  Blackburn,  486. 

V.  Campbell,  685. 
Pyrke  v.  Waddingham,  6,  548,  549,  551. 

Ouackenbush  v.  Ehle,  394. 
Queen  v.  Sadler's  Co.,  422. 
Quick  V.  Stuyvesant,  483. 
Quimby  v.  Vanderbilt,  296. 
Quinn  v.  Roath,  7,  347,  403,  642. 
Quivey  v.  Baker,  573. 

Radcliffe  ?'.  Warrington,  421,  595,  628, 
640. 
V.  Wightman,  521. 
Rader  %>.  Neal,  629. 
Radford  v.  Willis,  557. 
Railton  v.  Mathews,  410. 
Raines  v.  Calloway,  497. 
Rake  v.  Pope,  395. 
Ramsey  v.  Brailsford,  675,  740. 
Ramsbottom  v.  Gosden,  403,  506,  517. 

V.  Parker,  454. 
Ramsden  v.  Hirst,  716. 
V.  Dyson,  419. 
V.  Hylton,  477,  588. 


Ramsey  v.  Listen,  369. 
Randal  v.  Randal,  507. 
Randall  v.  Hall,  580. 

V.  Latham,  37. 
•     V.  Morgan,  182.     '' 

V.  Van  Vechten,  331,  333. 
Ranelagh  (Lord)  v.  Melton,  634. 
Ranger  7/.  Gt.  Western,  31,  419. 
Rankin  v.  Huskisson,  140,  147. 
V.  Maxwell,  167. 
V.  Mortimere,  479. 
V.  Simpson,  376. 
Rapp  V.  Latham,  419. 
Rathbun  v.  Rathbun,  356,  360. 
Rawdon  v.  Blatcliford,  413. 

V.  Shadweli,  287,  453. 
Rawlins  v.  Burgis,  257. 

V.  Wickham,  402,  421,  438. 
Rawson  v.  Johnson,  608. 
Rayner  v.  Grote,  99. 
V.  Julian,  83. 
V.  Stone,  38,  68. 
V.  Wilson,  402. 
Raynes  v.  Wyse,  157. 
Raynor  v.  Linthorne,  329. 
Read  v.  Power,  544. 
Reade  v.  Armstrong,  492. 
V.  Livingston,  461. 
Reading  v.  Price,  436. 
Ready  v.  Noakes,  245. 
Rearich  v.  Swinehart,  445,  447. 
Rector  v.  Price,  568,  629. 
Redding  v.  Wilkes,  390,  393. 
Reddish  v.  Miller,  655. 
Redmond  v.  Dickerson,  12. 
Reed  v.  Beazley,  53.  ; 

V.  Breeden,  636. 
V,  Jones,  644. 
V.  Noe,  568,  576,  704. 
V.  Norris,  329. 
V.  Reeve,  287. 
V.  Rudman,  224. 
V.  Vannorsdale,  TJ. 
V.  Vidal,  37. 
V.  Warner,  329. 
Rees  V.  Dacre,  46. 

Reese  v.  Board  of  Police  of  Lee  County,. 
85.  252. 
V.  Reese,  199,  209,  260,  363. 
Silver  Mining  Co.,  In  re,  437. 
V,  Wyman,  417. 
Reeve  v.  Strong,  349. 
Reeves  v.  Kimball,  588. 

V.  Pye,  358. 
Regent's  Canal  Co.  7/.  Ware,  591,  742^ 
Reid  7/.  Shergold,  520. 
Reilly  v.  Miami  Exporting  Co.,  136. 

V.  Smith,  722. 
Reinicker  v.  Smith,  421,  428. 
Religious  Soc.  v.  Stone,  282. 


[The  figures  refer 
to  the  pages.] 


CASES    CITED. 


xlv 


Remington  v.  Irwin,  606. 

Remmington  v.  Kelley,  659. 

Remsen  v.  Hay,  290. 

Renkin  v.  Hill,  162. 

Renshaw  v.  Gans,  448. 

Rerick  v.  Kern,  252,  386. 

Reservoir  Co.  v.  Chase,  478. 

Respass  ii.  McClanahan,  74. 

Revell  V.  Hussey,  229,  257,  258. 

Rex  V.  Scammonden,  508. 

Reynell  v.  Sprye,   278,  403,  416,  420, 

438. 
Reynolds  v.  Hewitt,  380. 

V.  Nelson,  137,  640,  642,  678. 
V.  O'Neil,  202. 
V.  Vance,  719. 
V.  Waring,  206,  362,  396. 
Rhea  v.  Jordan,  375. 
Rhine  v,  Robinson,  378. 
Rhoades  v.  Castner,  312. 
Rhodes  v.  Rhodes,  368,  370,  399. 

V.  Thomas,  686. 
Rice  V.  Gove,  333. 

V.  Rawlings,  224,  421 
Rich  V.  Errol,  302. 

V.  Jackson,  403,  509. 
V.  Sydenham,  217. 
Richards'  Appeal,  139. 
V.  Green,  159. 
V.  Mercer,  556. 
V.  Porter,  311. 
V.  Richards,  122. 
Richardson  v.  Baker,  659. 
%>.  Brooks,  13. 
V.  Eyton,  58. 
V.  Godwin,  128. 
V.  Linney,  576. 
V.  Smith,  60,  63. 
Richmond  v.  Dubuque,  etc.,  R.R.  Co., 
12,  71,  260,  277,  731. 
V.  Foote,  356. 
V.  Gray,   534,   548,  566,  573, 

631. 
V.  Robinson,  92,  636,  721. 
Ricketts  v.  Bell,  197,  506. 
Rider  v.  Gray,  260,  752. 

V.  Powell,  501. 
Ridgway  v.  Gray,  572,  716. 
V.  Underwood,  461. 
V.  Wharton,    129,    130,    195, 
309,   310,   314,  315,  316, 

330.  332.  333.  338,  647, 

658. 
Ridley  v.  McNairy,  352,  390,  "~ 

Riesz's  Appeal,  721. 
Rights/.  Cuthell,  188. 
Riley  v.  Farnsworth,  195. 
Ring  V.  Ashworth,  202,  483. 
Rishton  v.  Whetmore,  336. 
Rist  V.  Hobson,  122,  397. 


Ritson  V.  Dodge,  660. 
Rives  V.  Rives,  52. 
Roake  v.  Kidd,  546. 
Robb  V.  Mann,  256. 
Roberts  v.  Berry,  638. 
V.  Kelsey,  68. 
V.  Lovejoy,  659. 
V.  Marchant,  86,  87. 
V.  Marston,  196. 
V.  Massey,  742. 
V.  Roberts,  283. 
V.  Rockbottom,  394. 
V.  Swearingen,  615. 
V.  Wyatt,  694. 
Pvobertson  v.  Gt.  Western  R.R.  Co.,  «2. 
V.  Hogsheads,  731. 
V.  Robertson,  378. 
V.  Skelton,  256,  744,  746. 
Robeson  v.  Hornbaker,  188,  203. 
Robinson  v.  Bland,  302. 
V.  Cathcart,  25. 
V.  Cox,  285. 
V.  Garth,  335. 
V.  Green,  528. 
V.  Kettletas,  48. 
V.  McDonald,  86. 
V.  Page,  441.   507,   508,  685, 

686,  688. 
V.  Perry,  48,  96. 
V.  Raynor,  52. 
V.  Robinson,  27,  243. 
V.  Smith,  84. 
V.  Wall,  464. 
Robson  V.  Collins,  248,  682. 
Roby  ■z/.  Cossit,  in,  120,  330,  655. 
Rochester  v.  Anderson,  78. 
Rock  River  Bank  v.  Sherwood,  302. 
Rockwell  V.  Lawrence,  199,  734. 
Rodman  v.  Williams,  441. 

V.  Zilley,  224,  240,  429. 
Roffey  V.  Shollcross,  526,  711. 
Rogers  z/.  Atkinson,  470,  499. 
V.  Challis,  25,  68,  739. 
V.  Earl,  507. 

V.  Mitchell,  444.  ■  : 

V.  Murray,  339,  349. 
V.  Odell,  443,  493. 
V.  Price,  142. 
V.  Rathbun,  286,  453. 
V.  Rogers,  53. 
V.  Salmon,  407. 
V.  Saunders,    7,     14,    270,    324, 

576,  631. 
V.  Taylor,  604. 
V.  Trader's  Ins.  Co.,  99. 
Rolfe  V.  Peterson,  30. 

V.  Rolfe,  139. 
Roller  t/.  Ott,  281. 
Rondeau  v.  Wyatt,  355,  398,  399 
Roosevelt  v.  Fulton,  406. 


xlvi 


CASES    CITED. 


[The  figures  refer 
to  the  pages. 


Root  V.  French,  io6. 
Roper  V.  Bartholomew,  27,  32. 
Ropes  V.  Upton,  44. 
Rose  V.  Bates,  345,  463. 

V.  Gal  land,  551. 

7'.  Cuninghame,  269,  314. 

V.  Swann,  663. 

V.  Truax,  282. 
Rosenthal  ?'.  Freeburger,  375. 
Ross  V.  Baker,  1 88. 

V.  Buchanan,  12. 

V.  Estates   Investment   Co.,  416, 

431- 

V.  Hegeman,  339. 

V.  Lincler,  93. 

V.  Mather,  445. 

V.  Parker,  322. 

V.  Tillerton,  468. 

V.  Union  Pacific  R.R.  Co.,  33. 

V.  Wilson,  514. 
Rosse  (Earl  of)  v.  Sterling,  691. 
Rossiter  v.  Miller,  190. 
Rostetter  v.  Grant,  91,  723. 
Roundtree  ■z/.  McLean,  19,  199. 
Routledge  v.  Grant,  172,  176. 
Rowan  v.  Adams,  277. 
Rowe  V.  Teed,  130. 
Rowton  V.  Rowton,  363. 
Roy  V.  Willink,  124. 
Royle  V.  Wynne,  5. 
Rucker  v.  Cammeyer,  335. 

V.  Levick,  384. 
Ruckman  v.  King,  654. 
Rudd  V.  Jones,  521. 
Rudolph  V.  Covell,  6. 
Ruffey  V.  Henderson,  386. 
Ruffner  i'.  McConnel,  472,  484. 
Ruiz  V.  Norton,  113. 
Runnels  v.  Jackson,  642. 
Russell  V.  Darwin,  47, 
V.  Jackson,  443. 
v.  Stimson,  245. 
Rutenberg  ii.  Main,  323,  399. 
Rutgers  v.  Hunter,  47. 
Rutherford  v.  Green,  86. 

V.  Haven,  612. 
Rutland  v.  Brister,  563. 

V.  Paige,  127. 
Rutledge  v.  Smith,  742. 
Ryan  v.  Anderson,  97 

V.  Blunt,  521. 

V.  Daniel,  50. 

-v.  Do.x,  339,  356. 
Ryno  V.  Darby,  441,  504,  682. 


Safford  v.  Wyckoff,  295. 
Sage  V.  McGuire,  378. 
Sain  V.  Dulin,  130. 
Sailors  v.  Gambriel,  354. 


Sainsbury  ?'.  Jones,  730. 

Sainter  v.  Ferguson,  6,  33,  695. 

Sale  V.  Lambert,  190,  336. 

Salisbury  v.  Hatcher,  271,  554. 

Salkeld  v.  Vernon,  468. 

Salmon  v.  Bennett,  462. 

Salmon  Falls  Manf.  Co.  v.  Goddard, 

323,  326. 
Sams  71.  Fripp,  324. 
Samuda  7).  Lawford,  38,  738. 
Samuel  v.  Wiley,  155. 
Sanborn  v.  Flagler,  308,  311. 
V.  Stetson,  443. 
V.  Woodman,  596,  598. 
Sanders  v.  Rodway,  54,  145,  147. 

V.  Wagonseller,  363. 
Sanderson  v.  Stockdale,  122. 
Sandford  v.  Washburn,  494. 
Sandfoss  v.  Jones,  278,  343. 
Sanger  v.  Wood,  468. 
Sangnirico  v.  Benedetti,  150. 
Sanxter  ?7.  Foster,  134. 
Sari  7/.  Bourdillon,  188. 
Sarter  v.  Gordon,  240,  659. 
SaterT/.  Hill,  381. 
Satterfield  v.  Keller,  576. 
Saunders  v.  Cramer,  103,  182. 

V.  Richards,  79,  91. 

V.  Simpson,  248. 

V.  Wakefield,  171. 
Saunderson  v.  Cockermouth  &  Work- 
ington R.R.  Co.,  35,  202,  207. 
Saunderson  v.  Jackson,  311,  326,  328. 
Savage  v.  Brocksopp,  597. 
V.  Carroll,  88. 
V.  Foster,  381. 
V.  Murphy,  461. 
Savery  v.  King,  468. 
Savile  v.  Savile,  239. 
Savill  V.  Savill,  589. 
Saville  v.  Tancred,  23. 
Sawyer  v,  Hovey,  514. 
V.  Mills,  116. 
V.  Sledge,  561. 
Saxton  V.  Wheaton,  461. 
Sayer  v.  Sayer,  520. 
Scarborough  71.  Arrant,  103. 
Scarlett  v.  Hunter,  670. 

7t.  Stein,  600,  643. 
Schackell  7'.  Rosier,  279. 
Schiffer  7/.  Pruden,  536. 
Schmeling  v.  Kriesel,  199. 
Schmidt  v.  Gatewood,  348. 
V.  Livingston,  659. 
Schneider  v.  Heath,  409,  438,  540. 

7'.  Norris,  326. 
Scholfield  V.  Lockwood,  492. 
School  District  v.  MacLoon,  382. 
Schroeder  v.  Gemeinder,  267. 
Schroeppel  v.  Hopper,  18,  87,  674. 


[The  figures  refer 
to  the  pages.] 


CASES    CITED. 


XlVll 


Schuessler  v.  Hatchett,  742. 
Schulter  v.  Bockwinkle,  307. 
Schumaker  v.  Sibert,  324. 
Scofield  V.  Templer,  449. 
Scott  V.  Barker,  663. 

V.  Becher,  135, 

V.  Bilgerry,  19,  707,  734. 

V.  Duffy.  275. 

V.  Duncan,  492. 

V.  Eastern  Co.  R.R.,  378. 

V.  Fields,  634. 

V.  Freeland,  429. 

V.  Hanson,  431,  706, 

V.  Langstaffe,  100. 

V.  Nesbitt,  286. 
"^"     V.  Rayment,  41,  739. 

V.  Scott,  181. 

V.  Shepherd,  576. 

V.  Shiner,  439. 

V.  Tyler,  283. 

V.  Whitlow,  7. 
Scotten  V.  State,  279. 
Seager  2/.  Burns,  78,  81,  103,  121,  266. 
Seaman  v.  Vawdrey,  538,  555,  700. 
Seagrave  v.  Seagrave,  55. 
Sears  v.  Boston  (City  of),  192. 

V.  Shafer,  289. 
Seaton  v.  Mapp,  633,  639. 
Seaward  v.  Willock,  610. 
Secombe  v.  Steele,  81,  585. 
Secrest  v.  McKenna,  576,  587. 
Seely  z/.  Howard,  612. 
Segur  V.  Tingley,  482. 
Seidenbender  v.  Charles,  275,  286. 
Selby  V.  Geines,  514. 

V.  Selby,  325,  326. 
Selden  v.  James,  744. 
V.  Myers,  444. 
Semmes  v.  Worthington,  357,  398. 
Septon  V.  Friltlock,  468. 
Seton  V.  Slade,  267,  565,  627,  628,  643. 

655,  675. 
Setter  v.  Alvey,  281. 
Seward  v.  Jackson,  461. 
Seymour  v.  Davis,  354. 

V.  Delancey,   7,   8,    224,   239, 

545.  563,  564,  649- 
V.  Hazard,  154. 
V.  McDonald,  146. 
V.  Minturn,  55. 
Shackle  v.  Baker,  44. 
Shackleton  v.  Sutcliffe,  534,  711. 
Shaddle  v.  Disborough,  439. 
Shafer  v.  Davis,  47 1 . 
V.  Niver,  645. 
Shakel  v.  Marlborough,  1 17. 
Shakspeare,  v.  Markham,  52,  199. 
Shand  v.  Hanley,  461. 
Shannon  2/.  Bradstreet,    133,    159,   357, 
520. 


Shannon  v.  Taylor,  86. 
V.  White,  468. 
Shapland  v.  Smith,  545. 
Sharp  V.  Milligan,  331,  647,  677. 

v.  Taylor,  155. 

V.  Teese,  286. 

V.  Trimmer,  615,  654. 
Shaw  V.  Fisher,  18,  24,  95,  682. 

V.  Levy,  462. 

V.  Livermore,  165. 

V.  Mackray,  217. 

V.  Nudd,  331. 

V.  Stines,  425. 

V.  Thackray,  103,  159. 

V.  Vincent,  535,  561,  705. 
Shawmut  Bank  v.  Plattsburgh  &  Mon- 
treal R.R.  Co.,  293. 
Sheard  v.  Venables,  408. 
Shearer  v.  Ranger,  544. 
Shedda  v.  Sawyer,  455. 
Sheets  v.  Andrews,  609. 
Sheffield  Canal  Co.  v.  Sheffield  R.R. 

Co.,  179. 
Sheffield  v.  Collier,  386. 
Sheffield  Gas  Consumers  Co.  v.  Harri- 
son, 41. 
Sheffield  v.  Mulgrave  (Lord),  546, 
Sheid  V.  Stamps,  199,  320. 
Shelburne  7/.  Inchiquin,  514. 
Shellhammer  v.  Ashbaugh,  387. 
Shelly  V.  Nash,  236. 
Shelthar  v.  Gregory,  53. 
Shelton  v.  Church,  204. 
Shenk  v.  Mingle,  285. 
Shepherd  v.  Bevin,  237,  244,  389. 
V.  Shepherd,  247,  363. 
V.  Walker,  648. 
Sherburne  v.  Fuller,  354. 
V.  Shaw,  336. 
Sherman  v.  Wright,  429,  484. 
Sherwin  v.  Shakspeare,  744,  745. 
Sherwood  v.  Vanderburg,  560. 
Shields  v.  Trammell,  338,  542. 
Shinn  v.  Bodine,  527. 
Shipp  V.  Swann,  496. 
Shirley  z>.  Davis,  486. 

V.  Shirley,  270,  323. 
V.  Spencer,  382.  ' 

V.  Stratton,  214,  540. 
Shively  v.  Welch,  514. 
Shober  v.  Dutton,  550. 
Shockley  v.  Davis,  26.       '  I 

Shore  "u.  Wilson,  189. 
Short  v.  Price,  247. 
Shortall  v.  Mitchell,  659,  665. 
Shotwell  V.  Murray,  471. 
Shovel  V.  Bogan,  719. 
Showman  v.  Harford,  645. 

V.  Miller,  495. 
Shreck  v.  Pierce,  542,  552.  ' 


xlviii 


CASES    CITED. 


[The  figures  refer 
to  the  pages.] 


Shrewsbury  &  Birmingham   R.R.  Co. 
V.  London  &   Northwestern  R.R. 
Co.,  148,  219,  225,  277,  295,  298. 
Shrewsbury  &  Birmingham   R.R.  Co. 

V.  Stour  Valley  R.R.  Co.,  233. 
Shrewsbury  &   Brighton    R.R.   Co.  v. 
London     &     Northwestern    R.R. 
Co.,  658. 
Shriver  v.  Seiss,  199. 
Shropshire  v.  Brown,  363. 
Shuffleton  v.  Jenkins,  636. 
Siboni  ?'.  Kirkman,  114. 
Sichel  V.  Mosenthal.  68. 
Sidebotham  v.  Barrington,  564. 
Siebel  v.  Mosenthal,  25. 
Silver  7/.  Campbell,  117. 
Silver  Lake  Bank  v.  North,  300,  301. 
Simmonds  v.  Swaine,  167. 
Simmons  v.  Cornelius,  365. 
7>.  Hill,  369,  383. 
7'.  Spruill,  321. 
V.  Worth,  489. 
Simon  v.  Motives,  334. 
Simplot  V.  Simplot,  689. 
Simpson  v.  Breckenridge,  321. 
V.  Denison,  299. 
V.  Simpson,  53,  54. 
7>.  Vaughn,  507. 
Sims  V.  Ferrill,  418. 

V.  McEwen,  590,  731. 
Sinard  v.  Patterson,  686. 
Singer  Co.  v.  Union  Co.,  138,  139. 
Sissons  V.  Divon,  276. 
Sites  V.  Keller,  366. 
Sitton  V.  Shipp,  375. 
Sivoly  V.  Scott,  608. 
Skee  V.  Coxson,  60. 
Skillman  v.  Teeple,  477. 
Skinner  v.  Dayton,  29. 

V.  M'bouall,  131,  179,  316,  399. 
V.  Morris    Canal    &     Banking 

Co.,  15. 
V.  White,  29. 
Skipwith  V.  Strother,  287. 
Skipworth  v.  Dodd,  353. 
Slason  V.  Wright,  127. 
Slater  v.  Maxwell,  463,  465. 

V.  Smith,  323. 
Slaughter  ta  Gerson,  435. 
V.  Harris,  576. 
V.  Nash,  78. 
Slauson  v.  Watkins,  16. 
S\ttv.  Bradford,  138. 
Slice  V.  Derrick,  379. 
Slim  V.  Croucher,  442. 
Slocum  V.  Despard,  609,  614. 

V.  Marsh,  289. 
Sloman  v.  Walter,  32. 
Sloper  77.  Fish,  545,  546,  550. 
Small  V.  Attwood,  540. 


Small  7^  Owings,  130,  398. 

7'.  Proctor,  560. 
Smith  V.  Addleman,  686. 

V.  Allen,  483. 

V.  Ankrim,  206. 

V.  Arnold,  313,  329,  334. 

V.  Aykwell,  283. 

V.  Babcock,  435. 

V.  Beatty,  414. 

V.  Bowen,    1 59. 

V.  Brailsford,  130. 

V.  Bromley,  279. 

V.  Burnham,  339. 

V.  Cannel,  544. 

V.  Capron,  125,  196. 

V.  Carney,  12. 

V.  Cedar  Falls  &  Minn..R.R.',Co., 
693.  .•  .VJ( 

V.  Clarke,  ill,  439,  463. 

V.  Countryman,  435. 

V.  Crandall,  199,  224, '360/363. 

V.  Death,  550. 

V.  Dolman,  744. 

V.  Evans,  326,  719. 

V.  Everett,  402. 

7K  Finch,  366. 
Smith  &  Fleek's  Appeal,  268,  323. 
Smith  V.  Fly,  707. 

V.  Garland,  271,  557. 

V.  Greeley,  497. 

V.  Greenlee,  465. 

V.  Hampton,  659. 

V.  Harrison,  213,  221,  437. 

V.  Henley,  683. 

7'.  Hollenback,  549. 

V.  Iverson,  66. 

V.  Jewett,  31. 

V.  Jeyes,  683. 

V.  Johnson,  284. 

7/.  Jordan,  483. 

V.  Kay,  416,  422,  443. 

V.  Kelly,  96,  161,  532,  734. 

V,  Lawrence,  678. 

V.  Mawhood,  281. 

V.  McDougal,  471. 

V.  Mclver,  442. 

V.  McVeigh,  267,  358. 

V.  Pawson,  443. 

V.  Peters,  63,  64,  193. 

V.  Phillips,  104. 

V.  Reese  River  Co.,  418. 

V.  Richards,  417,  437,  441. 

V.  Robinson,  607. 

V.  Sheeley,  302. 

V.  Sheldon,  81,  91. 

V.  Short,  12. 

V.  Smith,  56,  262,  691. 

7/.  Stanton,  314. 

V.  Turner,  548. 

V.  Underdunck,  364,  369,  378. 


[The  figures  refer 
to  the  pages.] 


CASES    CITED. 


xlix 


Smith  V.  Wells,  637. 

z'.  Wheatcroft,  128,  189. 
V.  Wood,  224. 
Smoot  V.    Rea,  7,   131,  604,  616,  642, 

726, 
Smout  V.  Ilbery,  417. 
Smull  V.  Jones,  466. 
Smyth  V.  McCool,  489. 
Snedaker  v.  Moore,  402. 
Sneesby  v.  Thorne,  218,  484. 
Snell  V.  Jones,  465. 

V.  Mitchell,  7,  8,  489. 
Snelson  v.  Franklin,  413. 
Snider  v.  Lehnherr,  638. 
Snodgrass  v.  Wolf,  576. 
Snowan  v.  Harford,  89,  728. 
Snyder  v.  May,  498. 

V.  Murdock,  537. 
V.  Neefus,  262. 

V.  Spaulding.  545,  551,  561,  563, 
596. 
Soames  v.  Edge,  6,  734,  738. 
Sober  7/.  Kemp,  81. 
Society,  etc.  v.  Butler,  224. 
Soggins  V.  Head,  343. 
Sohier  7/.  Williams,  106,  534,  545,  550. 
Soles  V.  Hickman,  190,  206,  316. 
Solinger  v.  Jewett,  402. 
Solomon  z'.  Laing,  299. 

V.  Webster,  174, 
Somerby  v.  Buntin,  42,  307. 
Somerset  (Duke  of)  v.  Cookson,  23. 
Somerville  v.  Chapman,  46. 

V.  Mackay,  42. 
Sorrell  v.  Carpenter,  727. 
Souch  V.  Straw-bridge,  396. 
Soule  V.  Holdridge,  605. 
Souter  r/.  Drake,  197. 
South  Sea  Co.  v.  D'Oliffe,  507. 
South  Wales  R.R.  Co.  v.  Wythes,  10, 

33.  37,  194.  195,  207,  383,  523,  525. 
Southampton  (Lord)  v.  Brown,  74. 
Southby  V.  Hutt,  573. 
Southcomb  v.  Exeter  (Bishop  of),  653, 

658,  675. 
Southeastern  R.R.  Co.  v.  Knott,  265. 
Southern  Ins.  Co.  v.  Cole,  185. 
Southwell  V.  Beezley,  526. 
South  worth  v.  Hopkins,  594. 
South  Yorkshire   R.R.  &    River   Dun 

Co.  V.  Gt.  Northern  R.R.  Co.,  292, 

297,  298. 
Soverbye  v.  Arden,  51. 
Sower  V.  Weaver,  387. 
Sowle  V.  Holdridge,  599. 

V.  Sowle,   196. 
Spackman's  Case,  468. 
Spafford  zk  Warren,  93. 
Spain  (King  of)  v.  De  Machado,  in. 
Spalding  v.  Hedges,  437. 


Spangler  7/.  Danforth,  190,  321. 
Sparks  v.  White,  477. 
Sparrow  z>.  Kingman,  560. 
Spaulding  v.  Alexander,  657. 

V.  Congelman,  383. 
Speakman  v.  P'orepaugh,  550. 
Spear  v.  Orendorf,  365,  377. 
Spedon  v.   Mayor,  etc.,  of  New  York^ 

295. 
Spence  v.  Hogg,  103. 
Spencer  7'.  Field,  113,  333. 

V.  London    and    Birmingham 

R.R.  Co.,  141. 
V.  Topham,  555. 
Spier  •z/.  Robinson,  78,  86. 
Spiller  z/.  Spiller,  135. 
Sprigg  V.  Albin,  663. 
Springfield  v.  Harris,  298. 
Springle  v.  Shields,  725. 
Springs  v.  Harven,  499. 
V.  Sanders,   18. 
Springwell  v.  Allen,  540. 
Sprinkle  v.  Hayworth,  52. 
Spunner  v.  Walsh,  415. 
Spurgin  v.  Trant,  422. 
Spurr  V.  Benedict,  402. 
Spurrier  T'.  Fitzgerald,  122,  130,  397. 

V.  Hancock,  653. 
Squire  v.  Campbell,  510,  579. 
V.  Whipple;  354. 
V.  Whitton,  189. 
Stackpole  v.  Arnold,  333. 
Stafford  v.  Bartholomew,  52. 
Staines  v.  Shore,  463. 
St.  Albans  (Duke  of)  v.  Shore,  712. 
Staley  v.  Murphy,  670. 
Stampoffski  v.  Hooper,  92. 
Stamps  V,  Bracy,  444. 
Standifer  v.  Davis,  614. 
Stanhope's  Case,  468. 
Stanley  v.  Chester  &  Birkenhead  R.R. 

Co.,  95,  105,  109,  166,  682. 
Stanley  z'.  Robinson,  210. 

V.  Shrewsbury  (Earl  of),  140. 
Stansberry  v.  Pope,  92. 
Stansbury  v.  F ringer,  65,  268. 
Stansfield  z/.  Johnson,  334. 
Stanton  v.  Miller,  205,  240. 
Stanton  zf.  Percival,  22. 

V.  Tattersall,  536. 
Stapilton  v.  Stapilton,  53,  220,  476. 
Stapleton  v.  Stapieton,  56. 
Stapylton  v.  Scott,  402,  485,  549. 
Starens  v.  Newsome,  72. 
Starnes  v.  Allison,  545. 
State  V.  Johnson,  282. 

V.  McKay,  5. 

V.  Payson,  55. 

z'.  Reigart,  471. 
State  Treasurer  v.  Cross,  282. 


CASES    CITED. 


[The  figures  refer 
to  the  pages.] 


Stead  V.  Nelson,  93. 
Steamboat  Co.  v.  McCutcheon,  301. 
Steam  Navigation  Co.  v.  Weed,  301. 
Stearns  v.  Beckham,  7,  162,  210,  238. 

V.  Hubbard,  399. 
Stebbins  v.  Eddy,  430,  540,  718,  719. 
Stedman  v.  Collett,  509. 
Stedwell  v.  Anderson,  492,  496,  498. 
Steel  V.  Fife,  317,  615. 
Steele  v.  Branch,  643. 

V.  Kinkle,  409,  467. 
Stent  V.  Bailis,  258,  442. 
Stephens  v.  Cooper,  113. 
V.  Hotham,  245. 
V.  Hudson,  719. 
V.  Olive,  54. 
V.  Trueman,  76. 
Sterling  ^'.  Klepsattle,  17. 

V.  Sinnickson,  283. 
Sternberger  v.  McGovern,  735. 
Sterry  v.  Arden,  462. 
Stevens  v.  Adamson,  538. 
V.  Benning,  99. 
V.  Stevens,  386. 
V.  Wheeler,  369. 
Stevenson  v.  Buxton,  13,  541,  731. 
7'.  Dunlap,  576. 
V.  Jackson,  752, 
V.  Maxwell,    612,    740,    742, 

745- 
Steward  v.  Winters,  146,  148. 
Stewart  v.  Alliston,   137,  188,  403,  420. 

V.  Brand,  412. 

V.  Conyngham    (Marquis    of), 

554- 

V.  Gt.  Western  R.R.  Co.,  442. 

V.  Metcalf,  583. 

V.  Mumford,  13. 

V.  Raymond,  576,  577. 

V.  Smith,  198,  641. 

V.  Stewart,  371,  476. 

V.  Stokes,  663. 
Stiff  t/.  Cassell,  138,  152. 
Stilson  V.  Commrs.    of   Lawrence   Co., 

282. 
Stilwell  V.  Wilkins,  237. 
Stimpson  v.  Thomaston  Bank,  560. 
Stine  V.  Sherk,  514. 
Stitt  V.  Little,  420. 
St.  John  V.  Benedict,  7,  459. 

V.  St.  John,  53,  54. 
St.  Joseph  R.R.  Co.  v.  Ryan,  282. 
St,  Louis  (City  of)  v.  St.   Louis  Gas- 

Light  Co.,  64. 
St.  Mary's  Church  v.  Stockton,  534. 
Stockbridge  Iron   Co.  v.  Hudson  Iron 

Co.,  306. 
Stocker  v.  Brocklebank,  40. 

7'.  Partridge,  313. 

V.  Wedderburn,  264,  524,  532. 


Stockham  v.  Stockham,  179. 

Stockley  7'.  Stockley,  56,  216,  377,  381, 

471. 
Stockton  V.  Cook,  715. 
Stockton    «&    Hartlepool    R.R.   Co.   v. 

Leeds,  etc.,  R.R.  Co.,  148. 
Stockton  V.  Union  Oil  Co.,  569,  707,  754. 
Stoddart  v.  Hart,  192. 

V.  Smith,  706. 
Stoddert  v.  Port  Tobacco  Parish  (Ves- 
try of),  330. 
V.  Tuck,  199,  357,  363. 
Stoever  v.  Rice,  256. 
Stokes  V.  Moore,  328. 
Stone  V.  Browning  308. 

V.  Buckner,  89,  103,  576. 
7/.  Denny,  402,  417. 
■V.  Godfrey,  482. 
V.  Hackett,  340. 
V.  Hale,  499. 
V.  Pratt,  220,  224,  234. 
Storer  v.  Gt.  Western  R.R.  Co.,  35,  72, 

230. 
Storrs  V.  Barker,  471. 
Story  V.  Conger,  553. 

11.  Norwich  &   Worcester   R.  R. 

Co.,  60. 
■u.  Windsor  (Lord),  725. 
Stouffer  V.  Coleman,  27. 
Stourton  (Lord)  v.  Meers  (Sir  Thomas), 

565. 
Stoutenburgh  v.  Tompkins,  224,  445. 
Stow  v.  Russell,  635. 
Stowell  V.  Robinson,  627. 
St.  Paul  Division  v.  Brown,  8,  16,  125, 

614. 
Strange  v,  Watson,  578. 
Stratford  v.  Bosworth,   171,    195,   315, 

317. 
Stratton  v.  Davidson,  66. 
Street  v.  Rigby,  58. 
Strehl  V.  Evers,  307. 
Stretch  v.  Schenck,  647. 
Strickland  v.  Turner,  254,  259. 
Strober  v.  Dutton,  549. 
Strohmaier  v.  Zeppenheld,  64. 
Strong  V.  Blake,  605. 

V.  Waddeli,  608. 
Stroud  V.  Smith,  282. 
Stuart     (Lord    James)    v.    London   & 

North-Western  R.R.  Co.,  19,  207, 

230,  265,  593,  653,  659. 
Studholmes  v.  Mandell,  168. 
Stull  V.  Hurtt,  430,  442,  540,  719. 
Sturge  V.  Midland  R.R.  Co.,  208. 
Sturgis  V.  Morse,  468. 
Sturtevant  v.  Jaques,  545,  548,  554. 
Stuyvesant  v.  Davis,  598. 

V.  Mayor,  etc.,  of  N.  Y.,  5, 
34.  39.  695. 


[The  figures  refer 
to  the  pages.] 


CASES    CITED. 


li 


Styles  V.  Wardle,  640. 

Suber  v.  Pullin,  689. 

Suffrain  v.  McDonald,  268. 

Sug"gett  V.  Cason,  395. 

Sailings  v.  Sailings,  661,  713. 

Sullivan  v.  Fink,  19. 

Suman  v.  Springate,  373,  399. 

Summers  v.  GrifSths,  450. 

Sumner  v.  Parker,  694. 

Supervisors      of      Kewaunee     Co.    v. 

Decker,  513. 
Supervisors  v.  Henneberry,  576. 
Surcome  v.  Pinniger,  381,  391. 
Sutger  V.  Skiles,  465. 
Sutherland  v.  Briggs,  272,  381. 
Sutphen  v.  Fowler,  65. 
Sutton,  ex  parte,  590. 

V.  Hayden,  52. 

V.  Sutton,  369. 
Suydam  v.  Mastin,  106,  107. 
Swaysland  v.  Dearsley,  402,  409,  485. 
Swan  V.  Drury,  553. 
Swartz  V.  Swartz,  386. 
Swayne  v.  Lyon,  545,  548,  550. 
Sweeny  v.  Miller,  379. 
V.  O'Hara,  7. 
Sweet  V.  Jacocks,  342. 

V.  Lee,  395. 
Sweitzer  v.  Hammel,  614. 
Swepson  v.  Rouse,  97. 
Swimm  v.  Bush,  412,  420,  430. 
Swinfen  v.  Swinfen,  57. 
Swinnhart  v.  Cline,  554. 
Switzer  v.  Skiles,  398. 
Syers  v.  Brighton  Brewery  Co.,  135. 
Sykes  v.  Beadon,  276. 
Syler  v.  Eckhart,  388. 
Syles  V.  Kirkpatrick,  565. 
Symondson  v.  Tweed,  130. 


Taft  V.  Kessel,  553. 
V.  Leavitt,  578. 
Talbert  v.  Singleton,  495. 
Talbot  V.  Bo  wen,  130,  331,  398. 

V.  Ford,  148,  224,  226. 
Tallis  V.  Tallis,  148,  281. 
Tallman   v.    Franklin,    199,    201,    309, 
312,  337- 
V.  Green,  435. 
Talraadge  v.  North  Am.  Coal&  Trans- 
portation Co.,  293. 
V.   Rensselaer   &    Saratoga 
R.R.  Co.,  395. 
Tanner  v.  Peck,  600. 

V.  Smith,  137,  695,  696. 
Tapp  V.  Lee,  408. 
Tarleton  v.  Vietes,  398. 
Tarr  v.  Scott,  260,  266. 
Tarwater  v.  Davis,  553. 


Tasker  v.  Small,  3,  74,  79,  81. 
Tate  V.  Conner,  660. 
V.  Jones,  375. 
V.  Tate,  468. 
Tatham  v.  Piatt,  208. 
Tatum  V.  Brooker,  374. 
Tawney  t^.  Crowther,  310,  315. 
Tayler  v.  Waters,  386. 
Tayloe  v.  Merchant's  Fire  Ins.  Co.,  39. 
Taylor  v.  Ashley,  204. 

V.  Ashworth,  402. 

V.  Beech,  390. 

V.  Brown,  640. 

V.  Davis,  143. 

V.  Dening,  326. 

V.  Fleet,  406,  424,  431,  481. 

V.  Gilbertson,  208. 

V.  Gilman,  466. 

V.  James,  247. 

V.  Longworth,  219,  647,  649. 

V.  Luther,  345. 

V,  Merrill,  215,  331,  577,  660. 

V.  Neville,  21. 

V.  Nicholson,  521. 

V.  Patrick,  217. 

V.  Porter,  561,  662. 

V.  Portington,  38,  205,  207. 

V.  Reed,  754. 

V.  Rowland,  120. 

V.  Salmon,  84,  in. 

V.  Stibbert,  103. 

V.  Taylor,  289. 

V.  Williams,  200,  554. 
Taymen  v.  Mitchell,  417. 
Teague  v.  Fowler,  348, 
Teed  v.  Johnson,  471. 
Telfair  v.  Telfair,  27. 
Temple  v.  Johnson,  367. 
Tenant  v.  Elliott,  276,  280. 
Ten  Broeck  v.  Livingston,  581,  708. 
Tenney  v.  State  Bank,  734,  751. 
Terrell  v.  Farrar,  571. 
Terrett  v.  Taylor,  495. 
Territt  v.  Bartlett,  2 16. 
Tesson  v.  Atlantic  Mu.  Ins.  Co.,  514. 
Tevis  V.  Richardson,  12. 
Thayer  ■z^.  Middlesex  Fire  Ins.  Co.,  180. 

V.  Torrey,  196. 
Third  Turnpike  Co.  v.  Champney,  298. 
Thorn  V.  Bigland,  420. 
Thomas  v.  Blackman,  175,  653. 
V.  Brown,  53. 
V.  Cronie,  453. 
V.  Dering,  217,  273,  274,  315, 

571. 
%>.  Dickinson,  354. 
V.  Heathorn,  55. 
V.  Kyles,  253. 
V.  McCormick,  448,  510. 
V.  Richmond  (City  of),  294. 


lii 


CASES    CITED. 


[The  figures  refer 
to  the  pages.] 


Thompson  7^  Blackstone,  218. 
V.  Bruen,  664. 
V.  Carpenter,  571,  708. 
V.  Davenport,  740. 
V.  Davis,  465. 
V.  Deans,  61. 

V.  Dulles,  550,  566,  640,  670. 
V.  Gordon,  394. 
V.  Gould,  354,  537,  746. 
V.  Guyon,  623. 
V.  Lee,  417. 
V.  Myrick,  566,  702. 
V.  Puiteney,  520. 
V.  Scott,  373. 
V.  Smith,  86,  6oo,  612. 
V.  Tod,  224,  365,  399,  403. 
674. 
Thompson  Scale  Manf.  Co.  v.  Osgood, 

484. 
Thomson  v.  Thomson,  280. 

V.  White,  447. 
Thornbury  v.  Bevill,  45,  172,  174. 
Thornett  v.  Haines,  463,  461. 
Thornton  v.  Davenport,  459. 

V.  Henry,  382. 
Thorp  V.  Pettit,  576. 
Thurman  %>.  Shelton,  118. 
Thurston  v.  Ludvvig,  682. 
Thweatt  v.  McLeod,  402,  424. 
Thynne  v.  Glengall  (Lord),  360. 
Tibbatts  v.  Tibbatts,  690. 
Tibbs  V.  Barker,  369. 
V.  Morris,  659. 
Tibbutt  V.  Potter,  58. 
Tierman  v.  Poor,  14. 
Tiernan  v.  Gibney,  195,  207. 

V.  Roland,   16,   561,    564,  653, 
709. 
Tilley  v.  Thomas,  632,  639. 

V.  Peers,  238. 
Tilton  V.  TiUon,  130,  381,  496. 
Tindell  7/.  Conover,  553. 
Tiuney  v.  Ashley,  553,  608,  614. 
Tipping  7/.  Eckersley,  138. 
Tisdale  v.  Harris,  307. 
Tobey  v.  Bristol  (County  of),  7,  58,  74, 

224. 
Tobey  v.  Crow,  696. 

V.  Foreman,  127,  600,  613. 
Tod  V.  Taft,  493. 
Todd  V.  Gee,  25,  730. 

V.  Grove,  243. 
Tohler  v.  Folsom,  382. 
Toll  Bridge  Co.  v.  Vreeland,  553. 
Toller  V.  Carteret,  65,  66. 
Toilet  V.  Toilet,  520. 
Tolley  V.  Greene,  394. 
Tolson  V.  Sheard,  568. 
V.  Tolson,  519. 
Tomkinson  v.  Staight,  362, 


Tomlin  7/.  McChord,  541. 
Tomlinson  v.  Blackburn,  99. 

V.  York,  247. 
Tool  Co.  V.  Morris,  282. 
Toole  V.  Medlicott,  381. 
Torr  7^'.  Torr,  189. 
Tourney  v.  Sinclair,  54. 
Towan  v.  Barrington,  217. 
Towell  V.  Heclis,  27. 
Towle  V.  Jones,  5. 
Towner  v.  Lucas,  446. 
Town  of  Petersburg  v.  Metzker,  296. 
Townsend  v.  Champernowne,  88. 
V.  Coales,  41 5. 
V.  Hawkins,  358, 
V.  Houston,  365. 
V.  Hoyle,  298. 
V.  Hubbard,  324. 
V.  Lewis,  654. 
Townshend  (Marquis  of)  v.  Stangroom, 
403,  471,  503,  508,  509,  511,  514, 
517,  540. 
Townsly  v.  Chapin,  94. 
Tracy  v.  Talmage,  278,  288. 

V.  Tracy,  382. 
Traill  v.  Baring,  420,  443, 
Trant  v.  Dwyer,  47,  623. 
Traphagen  v.  Burt,  340. 
Trapnall  v.  Brown,  338,  398. 
Traver  v.  Halstead,  553. 
Treasurer  v.  Commercial  Co.,  24. 
Trecothick  v.  Austin,  95. 
Tremain  v.  Lining,  552. 
Trenchard  v.  Wanley,  443. 
Trevelyan  v.  Charter,  468. 
Trevor  v.  Wood,  312. 
Triebert  v.  Burgess,  26. 
Trigg  V.  Read,  471,  482. 
Trimble  v.  Elliott,  657. 
Tripp  V.  Bishop,  308,  323,  351. 

V.  Childs,  458. 
Trist  V.  Child,  282. 
Tritton  v.  Foote,  46,  47. 
Troughton  v.  Johnston,  464. 
Troutman  v.  Gowing,  724. 
Trovinger  v.  McBurney,  285. 
Troy  V.  Clarke,  636. 
Trustees  of  Amherst  Academy  v.  Cowls, 

282. 
Trustees  v.  Peaslee,  296. 
Tscheider  v.  Biddle,  59. 
Tubman  v.  Anderson,  358. 
Tucke  V.  Bucholz,  428. 
Tucker  v.  Clarke,  261. 
-v.  West,  285. 
V.  Wood,  172. 
Tufnell  V.  Constable,  248. 
Tufts  V.  Plymouth  Gold   Mining  Co., 

33°- 
Tulk  V.  Moxhay,  105. 


[The  figures  refer 
to  the  pages.] 


CASES    CITED, 


liii 


Tunstall  v.  Boothby,  loi. 
Turnbull  v.  Gadsden,  417,  439. 
Turner  t/.  Christian,  iii. 

V.  Clay,  7,  232. 

V.  Harvey,  219,  411,  414. 

V.  Mariott,  542. 

V.  Wright,  135. 
Turpin  v.  Banton,  62. 
Tuttle  V.  Moore,  20. 
Twigg  7/.  Fifield,  255. 
Twining  v.  Morris,  209. 
Twiss  V.  George,  252,  388. 
Twitchell  v.  Philadelphia,  331, 
Twyford  v.  Wareup,  720. 
Tyler  v.  Black,  441. 

V.  McCurdle,  576. 
Tyson  v.  Harrington,  444. 

V.  Passmore,  345,  417,  441. 
V.  Robinson,  60. 
V.  Watts,  7,  264. 


Udell  V.  Atherton,  418. 
Underhill  v.  Allen,  123,  366. 

V.  Harwood,  245,  453. 

V.  Saratoga    &    Washington 

R.R.  Co.,  593. 
V.  Williams,  369. 
V.  Van  Cortlandt,  127. 
Underwood  v.  Hitchcox,  199. 
Ungley  v.  Ungley,  372. 
Union  Coal  Co.  v.  McAdam,  209,  443. 
Union    Mu.    Ins.    Co.   v.    Commercial 

Mu.  Ins.  Co.,  39. 
University  of  Vt.  v.  Buell,  282. 
Upham  V.  Hamill,  482. 
Upperton  v.  Nicholson,  420,  554. 
Uppington  v.  Bullen,  452. 
U.  S.  V.  La  Vengeance,  118. 

V.  Munroe,  516. 
Usher  v.  McBratney,  282. 
V.  Livermore,  639. 
U.  S.  Trust  Co,  V.  Brady,  295. 
Utica  Ins.  Co.  v.  Bloodgood,  302. 
V.  Cadwell,  302. 
V.  Scott,  302, 


Vail  V.  Nelson,  618,  674. 

Valetti  V.  White  Water  Canal  Co.,  191. 

Valloton  V.  Seignett,  38. 

Van  V.  Corpe,  438,  507. 

Van  Campen  v.  Knight,  608,  670, 

Van  Corllandt  v.  Beekman,  118,     • 

V.  Underhill,  521. 
Van  Couver  v.  Bliss,  545,  546. 
Vandall  v.  South  San  Francisco  Dock 

Co.,  293. 
Vandenanker  v.  Desbrough,  96, 
Vandeville  v.  Riggs,  84. 


Van  Doren  v.  Robinson,  193,  267,  668. 
Van  Duyne  v.  Vreeland,  78,  398. 
Vane  v.  Barnard  (Lord),  544. 
Van  Epps  v.  Harrison,  432, 

7/.  Schenectady,  706. 

V.  Van  Epps,  289. 
Van  Rennselaer  7/.  Penniman,  681. 
Van  Scoten  v.  Albright,  578. 
Vansittart  v.  Vansittart,   53,    160,  264, 

523. 
Vanzant  v.  New  York,  659,  660. 
Vardeman  v.  Lawson,  552, 
Varick  v.  Edwards,  17,  48, 
Vassar  v.  Camp,  180. 

V.  Vassar,  247. 
Vassault   v.   Edwards,  267,   268,  271, 

323- 
Vaughan  v.  Barclay,  17. 
Vaugn  V.  Ferris,  682. 
Vaupell  V.  Woodward,  399. 
Vauxhall  Bridge  Co.  v.  Spencer  (Earl), 

109. 
Veazie  v.  Williams,  462,  467. 
Vechten  v.  Terry,  84.^ 
Vennum  v.  Babcock,  576. 
Vernol  v.  Vernol,  468. 
Vernon  v.  Keyes.  414. 

V.  Stephens,  646. 
V.  Vernon,  76, 
Vesey  v.  Doton,  433. 

V.  Elwood,  255. 
Vicary  v.  Moore,  682. 
Vickers  v.  Hand,  744.    ' 
V.  Sisson,  382. 
V.  Vickers,  58. 
Viele  V.  Troy  &  Boston  R.R.  Co.,  60, 

240,  567. 
Vielie  v.  Osgood,  327. 
Vigers  v.  Pike,  244,  421,  435, 
Vincent  v.  Berry,  253,  568. 
Voorhees  %>.  De  Meyer,  475,  491,  548, 

570,  675,  701. 
Voorhees  v.  Presbyterian  Church,  289, 
Vouillon  V.  States,  504,  514. 
Vreeland  v.  Blauvelt,  550, 


Wack  V.  Sorber,  359,  383, 
Wadsworth  v.  Manning,  199, 
Wain  V.  Warlters,  171. 
Wainwright  v.  Read,  719. 
Wake  V.  Harrop,  492. 
Wakeman  v.  Dalley,  418. 

V.  Rutland  (Duchess  of),  90. 
Walker  v.  Barnes,  163,  716. 

V.  Bartlett,  34. 

V.  Brooks,  96, 

V.  Constable,  334,] 

77,  Cox,  89, 

'v.  Douglas?,  609,  666. 


liv 


CASES    CITED. 


[The  figures  refer 
to  the  pages.] 


Walker  7'.  Eastern   Counties  R.R.  Co. 
1 8,  178,  186. 
V.  Hill,  130,  209,  343,  398. 
7'.  Jeffrys,  620,  624,  633,  669. 
V.  Locke,  350. 
V.  Perkins,  285. 
V.  Sedgwick,  512. 
V.  Smith,  444. 
V.  Symonds,  443. 
V.  Walker,  338,  429,  508. 
V.  Wheatly,  520. 
7>.  Wheeler,  598. 
Wall  V.  Stubbs,  242,  420,  432. 
Wallace  v.  Brown,  349,  360,  455,  504, 
V.  McLaughlin,  562,  574,  597, 

709. 
V.  Pidge,  674. 
Waller  v.  Armistead,  429. 

V.  Hendon,  331. 
Walling  V.  Aiken,  587. 
Wallis  V.  Day,  39. 

V.  Long,  684. 
V.  Sarel,  745. 
Walmesley  v.  Booth,  289,  469. 
Walpole  (Lord)  v.  Orford   (Lord),  52, 

105,  182,  199,  362. 
Walsh  V.  Barton,  333,  544. 

V.  Hall,  560. 
Walter  v.  Walter,  355. 
Walters  v.  Morgan,  407,  414,  421. 

V.  Northern  Coal  Mining  Co., 
259. 
Walton  V.  Coulson,  200. 
V.  Johnson,  142. 
V.  Wilson,  642. 
Walworth  v.  Miles,  659. 
Wamburzee  v.  Kennedy,  467. 
Ward  V.  Buckingham,  143. 
V.  Byrne,  45,  46,  148. 
V.  Ledbetter,  444. 
V,  Webber,  444. 
Warden  v.  Jones,  350,  390,  392. 
Wardle  v.  Carter,  236. 
Ware  v.  Cowles,  445. 

V.  Grand  Junction  Water  Works 
Co.,  148. 
Waring  T/.  Ayers,  188,  203. 

V.  Manchester,    Sheffield,    and 
Lincolnshire     R.R.     Co., 
264,  523,  530. 
V.  Waring,  53. 
Warneford  v.  Warneford,  326. 
Warner  v.  Bennett,  31. 

V.  Daniels,  405,  449,  481,  483. 
V.  White,  168. 

V.  Willington,    171,   172,    176, 
179,  189,  311,  332. 
Warren  v.  Richmond,  690,  728. 
Warrick  v.  Warrick,  518. 
Washburn  v.  Dewey,  605,  611. 


Washburn  T'.  Fletcher,  114. 

V.  Merrill,  492. 
Washington  v.  McGee,  686. 
Washington  University  v.  Green,  141. 
Wason  z>.  Colburn,  340. 
Waterman  v.  Meigs,  318. 
Waters  7/.  Brown,  116,   199. 
V.  Howard,  6,  7,  224. 
V.  Howland,  19. 
V.  Travis,  536,  630,  650,  701. 
Watkins  tj.  Holman,  65. 

V.  Stockett,  443,  514. 
V.  Watkins,  54,  56,  392, 
Watson  V.  Inman,  669. 

V.  Mahan,  87,  253,  273, 
V.  Marston,  6,  226,  421. 
V.  Gates,  78. 
V.  Reid,  659,  678. 
V.  Sawyers,  612. 
Watt  V.  Evans,  366,  367. 
V.  Grove,  443,  452. 
Watts  V.  Bullas,  507. 

V.  Kinney,  164,  721. 

V.  Waddle,   534,   553-   563.  567, 

576,  662. 
V.  Watts,  357. 
Waul  V.  Kirkman,  313. 
Wayne  v.  Price,  18. 
Weale  v.  West  Middlesex  Water  Co., 

68. 
Weart  v.  Rose,  719. 
Weatherall  v.  Geering,  loi,  590. 
Weatherford  v.  James,  167,  701,  702. 
Weaver  v.  Carpenter,  482. 

V.  Carter,  720. 
Webb  V.  Alton,  etc.,  Ins.  Co.,  247. 
V.  Clarke,  30. 

V.  Direct  London  &  Portsmouth. 
R.R.  Co.,  18,  19,  229,  593. 
V.  England,  40. 
Webb  (Estate  of),  248,  340. 
V.  Hughes,  675,  676. 
V.  Page,  287. 
V.  Plummer,  142. 
V.  Rice,  472. 
V.  Stone,  694. 
Weber  v.  Marshall,  355,  663. 
Webster  v.  Cecil,  484,  485. 

V.  Dillon,  138,  142,  149. 
V.  Gray,  354. 
V.  Harris,  483. 
V.  Tibbitts,  79,  88. 
V.  Webster,  392. 
Weddall  v.  Nixon,  559. 
Wedgwood  v.  Adams,  217,  225,  227. 
I  Weed  V.  Pierce,  459. 
V.  Terry,  357. 
I  Weeks  v.  Robie,  686. 
I  Weems  v.  Brewer,  535. 
{  Weldron  v.  Letson,  502. 


[The  figures  refer 
to  the  pages.] 


CASES    CITED. 


Iv 


Welford  v.  Beazeley,  308,  327,  328. 
Weller  v.  Weyand,  120,  721. 
Welles  V.  Yates,  512. 
Wellesley  v.  Wellesley,  26,  54. 
Wells  V.  Caiman,  537. 
V.  Foster,  loi. 
V.  Horton,  394. 
V.  Maxwell,  35,  36,  678. 
V.  Millett,  404,  439. 
V.  Milwaukee,  etc.,  R.R.  Co.,  179. 
V.  Smith,  592,  593,  606,  612,  615. 
Welsh  V.  Bayud,  199,  356,  357,  731. 
Wemple  v.  Stewart,  484,  493. 
Wentworth  v.  Cock,   115. 
Wesley  v.  Thomas,  516. 
West  V.  Case,  576. 

V.  Flanagan,  384. 
West  Hickory  Mining  Assoc,  v.  Reed, 

86. 
West  V.  Jones,  402. 
Westall  V.  Austin,   565. 
Westerman  ?'.  Means,  638. 
Western  v.  McDermot,  599. 
Western  R.R.  Corp.  v.  Babcock,  240, 

481,  486. 
Western  v.  Russell,  243,  267,  270,  272, 

311,  325,  570. 
Westervelt  T'.  Matheson,  316. 
Westmeath  v.  Salisbury,  53. 

V.  Westmeath,  54. 
West  Midland  R.R.  Co.  v.  Nixon,  82. 
Weston  V.  Foster,  472. 
Wetherbee  v.  Bennett,  754. 
Wethered  v.  Wethered,  49. 
Wetherell  7^.  Jones,  275. 
Wetmore  v.  White,  365. 
Whaley  v.  Bagnal,  393. 
Whalley  v.  Whalley,  244. 
Whatman  <'.  Gibson,  599. 
Whealley  v.  Martin,  521. 

V.  Slade,  274,  702. 
V.  Westminster  Coal  Co.,  69, 
70. 
Wheaton  v.  Hibbard,  279. 
V.  Wheaton,  474. 
Wheeden  v.  Fiske,  689. 
Wheeler  v.  D'Esterre,  195. 
V.  Home,  745. 
V.  McClain,  577. 
V.  Newton,  92. 
V.  Reynolds,    341,    343,    350, 

360. 
V.  Smith,  477. 
V.  Trotter,  41. 
V.  Wheeler,  55. 
Wheelton  v.  Hardisty,  419,  422. 
Whelan  v.  Sullivan,  204,  318. 
V.  Whelan,  244,  289. 
Whitaker  v.  Bond,  232,  247,  279,  464. 
?/.Vanschoiack,  192,  441,510. 


Whitbread  v,  Brockhurst,  129,  357,  399. 
Whitbread,  ex  parte,  130. 
Whitchurch   v.    Bevis,    122,    129,    338, 

397.  399- 
White  V.  Bass,  286,  453. 
V.  Bennett,  641. 
V.  Butcher,  12,  642. 
V.  Corlies,  179. 
V.  Cox,  159,  217. 
V.  Crew,  334. 
V.  Cuddon,  218,  273. 
7>.  Cuyler,  331. 
V.  Damon,  245. 
7'.  Dobson,  536,  617,  742. 
V.  Flora,  237,  402,  450. 
V.  Franklin  Bank,  302. 
V.  Gilbert,  568. 
7>.  Hermann,  207,  320. 
V.  Jones,  442. 
V.  McGannon,  243. 
V.  Port  Huron,  etc.,   R.R.    Co., 

31.  510- 
V.  Proctor,  333. 
V.  Schuyler,  24. 
%>.  Thompson,  2^0. 
V.  Watkins,  90,  91,  334,  372. 
71.  Williams,  489. 
V.  Wilson,  501. 
Whitehead  v.  Peck,  4 153. 
Whitehouse  v.  Partridge,  156. 
White's  Bank  v.  Toledo  Ins.  Co.,  293. 
Whitesides  v.  Greenlee,  429. 
Whiting  V.  Gouhl,  339,  398,  594. 
Whitlock  V.  Duffieid,  46,  193. 
Whitman  Mining  Co.  v.  Baker,  293. 
Whitney  Arms  Co.  7/.  Barlow,  292,  301. 
Whitney  v.  McKinney,  95. 
V.  New  Haven,  12. 
V.  Peay,  303. 
V.  Stone,  61. 
Whitridge  v.  Parkhurst,  360. 
Whittaker  t.  Howe,  44,  45,  144. 
Whittemore  v.  Farrington,  473,  574, 

V.  Whittemore,  717. 
Whitworth  v.  Harris,  42. 


ble  V.  Wible,  378. 

ickenden  v.  Webster,  146. 

ckens  v.  Evans,  148. 

ekes  V.  Clarke,  462. 

ckham  v.  Wickham,  419. 

icks  V.  Hunt,  739. 

gglesworth  v.  Steers,  159,  217. 

ghtman  v.  Reside,  649. 

gley  V.  Blacwal,  167. 

[Iber  V.  Paine,  369. 

Ibur  V.  Howe,  28 1,  465. 

Icox  V.  Bellaers,  546. 

Icoxon  7'.  Calloway,  535,  754. 

Id  7'.  Hillas,  481. 

Iday  7'.  Bonney,  379. 


Ivi 


CASES    CITED. 


[The  figures  refer 
to  the  pages. J 


Wildbahn  7'.  Rol)idouN,  122,  130. 
Wilde  7/.  Fort,  627. 

V.  Fox.  350. 

V.  Gibson,    402,    414,    421,    423, 

443- 
Wiley  V.  Mullins,  121. 

V.  Robert,  187,  320. 
Wilkes  V.  Wilkes,  54. 
Wilkinson  7'.  Clements,  33,  266,  584. 
Wilkinson  v.  L'Eaugier,  453. 
■V.  Wilkinson,  351. 
Wilks  V.  Davis,  193. 
Willan  V.  Willan,  46,  208. 
Willard  v.  Tayloe,  7,  8,  74,  219,  269. 
Willets  7/.  Busby,  80. 
William  &  Mary  College  v.  Powell,  307. 
Williams  v.  Bacon,  310,  334. 

7'.  Bally.  145,  453,  454. 

V.  Brown,  339. 

V.  Cheney,  622. 

71.  Chrislee,  1 12. 

College  V.  Dantbrth,  282. 

V.  Edwards.  694. 

V.  Evans,  102,  382. 

V.  Hart,  660. 

7/.  Howard,  23. 

7/.  Hutchinson,  52. 

V.  Jones,  459. 

7'.  Jordan,  332. 

71.  Landman,  376. 

V.  Leach,  78. 
,  •  V.  Lewis,  306,  650. 

V.  Mattocks,  662. 

V.  McGuire,  457. 
;  V.  Morris,  355,  386. 

7A  Pope,  379. 

V.  St.  George's    Harbor   Co., 
109,  1 10. 

7'.  Starke,  666. 

7'.  Stewart,  187. 

■v.  Vreeland,  456. 

V.  Williams,  43,  44,  46,  146, 

175- 
Williamson  7).  Gihon,  284. 

V.  Williamson,  360. 
V.  Wooton,  208. 
Willingham  v.  Joyce,  590,  591. 
Willingsford  7'.  Willingsford,  193. 
Willink  V.  Vanderveer,  338,  348. 
Willis  V.  Astor,  47. 

7'.  Culvan,  746. 

V.  Forney,  630. 

V.  Henderson,  502. 

V.  Mathews,  388. 

7A  Willis,  410. 
Williston  i>.  Williston,  382,  657. 
Wills  V.  Stradling,   360,    365,  373,  381, 

383. 
Wilmer  71.  Farris,  378. 
Wilmot  7/.  Wilkinson,  610. 


Wilson  V.  Beddard,  326. 

7'.  Bennett,  550. 

7).  Brumfield,  576. 

V.  Campbell,  42. 

V.  Carpenter,  290. 

V.  Chicago,  etc.,  R.R.  Co.,  367. 

V.  Clapham,  745. 

V.  Clark,  323. 

V.  Clements,  174. 

V.  Cox,  712. 

V.  Deen,  574. 

7).  Fuller,  540. 

V.  Furness  R.R.,  36. 

V.  Keating,  24. 

V.  Northampton      &     Banburj' 
Junction    R.R.  Co.,  6,  199. 

V.  Randall,  539. 

V.  Short,  loi,  437,  438. 

V.  Spencer,  279. 

V.  Tappan,  565. 

V.  Torkington,  259. 

V.  Watts,  347. 

V.  West  Hartlepool  R.R.,  264. 

V.  Williams,  272,  571,  700,  702, 
716. 

V.  Wilson,  53,  54,  192. 
Wilton  V.  Harwood,  342,  352. 
Wimberly  v.  Bryen,  369. 
Winch  V.   Winchester,    504,    510,    540, 

707. 
Winchester  (Bishop    of)   v.   Midhants 

R.R.  Co.,  82,  89. 
Wingate  v.  Fry,  224. 

■V.  Hamilton,  713,  721. 
Wingfield  v.  Crenshaw,  622. 
Winn  71.  Albert,  398,  399. 

7'.  Bull,  173. 
Winne  v.  Reynolds,   534,  535,  555,  565, 

568,  700,  708. 
Winnington  v.  Briscoe,  275. 
Winnipisseogee    Manf.   Co.    7>.   Perley, 

515- 
Winslow  V.  Dawson,  27. 
Winston  v.  Browning,  717. 
Winter  v.  Blades,  742. 
Wintermute  v.  Snyder,  237,  471,  499. 
Winton  v.  Fort,  367. 

V.  Sherman,  612. 

v.  Spring,  686. 
Wise  V.  Ray,  325. 
Wiseman  71.  Roper,  48,  66. 
Wisner  7'.  Barnet,  118. 
Wistar's  Appeal,  57. 
Wiswall  V.  Hall,  447. 

V.  McGowan,  675,  735. 
Wiswell  V.  Teft,  199. 
Withy  7>.  Cottle,  24,  26,  633.  1 

Witter  71.  Briscoe,  552. 
Wolfe  V.  Frost,  356. 
V.  Luyster,  463. 


[The  figures  refer 
to  the  pages.] 


CASES    CITED. 


Ivii 


Wolford  V.  Heriington,  346. 
Wolverhampton  &  Walsall    R.R.    Co. 
V.  London  &  Northwestern   R.R. 
Co.,  40,  138. 
Wontner  ?7.  Shairp,  178. 
Wood  V.  Abrey,  235,  454. 

V.  Bernal,  555,  572,  675,  716. 

V.  Farmare,  373. 

V.  Griffith,  61,  63,  224,  231,  536, 
571,  701. 

V.  Jones,  366. 

V.  Lake,  386. 

V.  Leadbitter,  386. 

V,  Mann,  117. 

■z/.  Midgley,  128,  311,  315. 

V.  Patterson,  481. 

V.  Perry,  83,  616. 

V.  Price,  472. 

V.  Richardson,  217. 

■V.  Rowcliffe,  22. 

V.  Rowe,  58. 

V.  Scarth,  31 1,  507. 

V.  Shepherd,  62. 

v.  Thornly,  383. 

V.  Warner,  65. 

V.  White,  74. 

V.  Wood,  287. 
Woodbury  v.  Luddy,  700,  753. 
V.  Parshley,  386. 
Savings  Bank  v.  Charter  Oak 
Ins.  Co.,  494. 
Woodcock  7'.   Bennett,   247,  532,   731, 

735.  753- 
Wooden  v.  Haviland,  471,  499,  510. 
Woodhouse  v.  Shepley,  235,  283. 
Woodman  v.  Blake,  598. 

V.  Freeman,  732,  734. 
Woodroffe  v.  Farnham,  287. 
Woodruff  7/.  Dobbins,  686. 
V.  Hargrave,  247. 
V.  Heniman,  279. 
V.  Water  Power  Co.,  31. 
Woods  V.  Dille,  397,  398. 
V.  Hall,  402,  463. 
Woodson  V.  Barrett,  287. 

V.  Scott,  61 1. 
Woodward  v.  Aspinwall,  98,  267,  323. 
V.  Gyles,  30. 
V.  Harris,  263,  735. 
V.  Miller,  463. 
Woolam  V.  Hearn,  507,  510. 
Workman  v.  Guthrie,  366,  378. 
Worley  v.  Toggle,  500. 

V.  Walling,  391. 
Wormley  v.  Wormley,  217. 
Worrall  v.  Jacob,  54,  503. 

V.  Munn,  323,  331,  743. 
Worthington  v.  Semmes,  199,  363. 

V.  Warrington,  197. 
Wragg  V.  Comp.  Genl,  27. 
Wray  v.  Steele,  339. 
Wright  V.  Bell,  10. 


Wright  V.  Bigg,  180. 

V.  Brown,  409. 

V.  Cobb,  320. 

V.  Dame,  89,  1 18. 

V.  Dannah,  329. 

V.  Delafield,  127,  576. 

V.  Haskell.  689.  j 

V.  Howard,  633. 

V.  King,  325. 

V.  Le  Clain,  609.  : 

V.  Le  Claire,  129,  676. 

V,  McCormick,  513. 

V.  Pucket,  352,  357. 

V.  Tallis,  440. 

V,  Tinsley,  52. 

V.  Wakeford,  326. 

V.  Weeks,  207,  316. 

V.  Wilson,  449. 

V.  Wright,  49,  199,  363. 

V.  Young,  167,  712. 
Wrigley  i>.  Sykes,  551. 
Wuesthoff  f.  Seymour,  402,  439. 
Wurzburger  tA  Meric,  514. 
Wyatt  V.  Garlington,  608. 
Wyche  v.  Greene,  248,  499. 
Wycombe    v.     Donnington     Hospital, 

200,  485. 
Wynn  v.  Garland,  386,  582,  689. 
WynncT^.  Griffith,  137. 

V.  Price,  24. 
Wythes  v.  Lee,  274. 
Wyvill  V.  E.xeter  (Bishop  of),  256,  746. 

Yancey  v.  Green,  492. 
Yarborough  v.  Abernathy,  379. 
Yates  V.  De  Bogert,  295. 
Yeatman  %>.  Dempsey,  287. 
Yerby  v.  Grigsby,  325,  333. 
Yerger  v.  Green,  263,  309, 
York  V.  Gregg,  417. 
Yost  V.  Devault,  163,  721. 
Youell  V.  Allen,  489. 
Young  V.  Bumpass,  409,  439. 

V.  Clarke,  245. 

V.  Coleman,  489. 

V.  Daniels,  6,  611,  614,  656. 

ex  parte,  283. 

V.  Frost,  379. 

V.  Glendenning,  388. 

V.  Heermans,  459,  461. 

V.  Miller,  498. 

71.  Paul,  213,  324,  723. 

V.  Peachy,  447. 

"/.  Rathbone,  545,  549,  566,  634. 
Younger  v.  Welch,  642. 
Yovatt  V.  Winyard,  43. 
Yulee  V.  Canova,  457. 

Zane  v.  Zane,  55. 
Zebley  v.  Sears,  721. 
Zimmerman  v.  Wengert,  356,  384. 
Zollman  v.  Moore,  474, 


THE 

Specific  Performance  of  Contracts. 


BOOK  I. 

OF  THE  JURISDICTION. 


CHAPTER  I. 

DEFINITION  AND  NATURE. 

1.  Meaning  and  object. 

2.  Advantages. 

3.  Origin. 

4.  Extent.  , 

5.  Right  of  party  complaining  of  breach  of  contract. 

6.  Discretion  of  court. 

§  I.  What  meant  by,  and  ground  of . — Specific  perform- 
ance, as  applied  to  contracts,  has  been  defined,  "  The  actual 
accomplishment  of  a  contract  by  the  party  bound  to  fulfil 
it.'"  "Performance  of  a  contract  in  the  precise  terms 
agreed  upon;  strict  performance."'  But  as  the  exact 
fulfilment  of  an  agreement,  according  to  its  letter,  by  the 
party,  is  not  always  practicable,  the  phrase  may  mean,  in  a 
given  case,  not  literal,  but  substantial  performance ;  or  such 
a  performance  as  will  do  justice  between  the  parties  under 
the  circumstances,  with  compensation  to  the  other  party 
when  that  is  required.'  A  main  ground  of  the  jurisdiction 
of  courts  of  equity  in  specific  performance,  is  that  they 

'  Bouv.  L.  Diet.  ''  Burrill's  L.  Diet. 

■  '  The  term  specific  performance,  when  applied  to  a  partial  fulfilment,  with 
compensation  for  the  deficiency,  is,  of  course,  used  in  a  qualified  sense,  as  mean- 
ing the  best  performance  attainable  under  the  circumstances. 


2  DEFINITION    AND    NATURE.  §   2, 

are  capable  of  affording  relief  not  obtainable  at  law ;  the 
latter  requiring  the  plaintiff  to  show  precision,  on  his  part, 
in  complying  with  all  the  terms  of  the  agreement ;  while 
the  former  sometimes  relieve,  notwithstanding  defects  or 
failure  to  perform  at  the  day.      So  a  court  of  equity,  having 
regard  to  the  substance  of  the  agreement  and  the  object 
and  intention  of  the  parties,  will  not  permit  terms  that  are 
not  essential  to  be  set  up  as  a  reason  for  refusing  to  fulfil. 
And  although  the  legal  remedy  may  have  been  lost  by  the 
default  of  the  plaintiff,  yet  a  court  of  equity  will  enforce 
the  agreement  if  it  is  conscientious  that  it  should  be  per- 
formed : — as  where  the  plaintiff  has  fulfilled   on   his  part 
substantially,  but  not  so  completely  as  to  be  in  a  position 
to  claim  performance  at  law.'     On  the  other  hand,  if  the 
party  seeking  relief  has  already  obtained  substantially  what 
he  intended  to  get  under  the  agreement,  equity  will  not 
only  not  compel  a  formal  performance,  but  will  restrain 
an  attempt  to  recover  damages  at  law  for  non-performance. 
§  2.  Benefit  of  remedy. — The  remedy    of  specific   per- 
formance is  no  less  reasonable  than  beneficial.      It  is  an 
obvious  principle  of  justice  that  an  agreement,  fairly  and 
properly  entered  into^  should  not  be  evaded  or  violated ; 
and  that  the  party  injured  by  its  non-performance  ought  to 
obtain  some  form  of  redress.     As  the  end  of  every  contract 
is  the  accomplishment  of  the  thing  stipulated,  the  most 
direct  and  effectual  remedy  would  seem  to  be  the  compel- 
ling the  fulfilment  of  the  promise.     Cases  often  arise  in 
which  there    can    be  no  equivalent  for  non-performance. 
Real  estate,  from  its  location,  or  some  other  circumstance, 
may  be  a  peculiar  object  of  desire  to   a  purchaser  far  be- 
yond its  market  value  ;  and  the  same  may  be  true  of  per- 
sonal property,  so  that  the  failure  to  obtain  either  might 
not  be  adequately  compensated  in    money.     If  the   con- 

'  Davis  V.  Hone,  2  Sch.  &  Lef.,  341.  Courts  of  law,  unless  specially  author- 
ized by  statute,  do  not,  as  a  rule,  enforce  the  performance  of  contracts,  but  only 
award  damages  for  their  breach.     See  McLane  v.  Elmer,  4  Ind.,  239. 


§  3-  WHEN    IT    ORIGINATED.  3 

tract,  from  want  of  skill  or  mistake  in  drawing  it,  or  for 
any  other  cause,  does  not  express  the  intentions  of  the 
parties,  the  writing,  though  executed,  may  leave  the  real 
agreement  as  inoperative  as  if  one  of  the  parties  had  re- 
fused altogether  to  execute  it.  A  court  of  equity  will, 
in  the  exercise  of  its  acknowledged  jurisdiction,  afford  re- 
lief as  well  in  one  case  as  the  other,  by  compelling  the  de- 
linquent party  fully  to  perform  his  agreement  according  to 
the  terms  of  it  and  the  manifest  intention."  At  common 
law,  the  courts,  though  recognizing  the  obligation  of  the 
parties  to  a  contract  to  perform  their  respective  parts,  can 
in  general  only  enforce  this  obligation  by  way  of  damages.'' 
"  The  common  law  treats  as  universal  a  proposition  which 
is  for  the  most  part,  but  not  universally,  true,  namely,  that 
money  is  a  measure  of  every  loss.  The  defect  of  justice 
which  arises  from  this  universality  of  the  legal  principle,  is 
met  and  remedied  by  the  jurisdiction  of  courts  of  equity 
to  compel  specific  performance.'"  Moreover,  there  are 
cases  in  which  there  is  no  remedy  whatever  at  law,  for  the 
reason  that  the  law  regards  the  contract  as  void  ;  while 
equijy  considers  it  binding  in  conscience,  and,  therefore, 
entitled  to  specific  enforcement.  So,  the  contract  may  be 
one  affirmative  performance  of  which  cannot  be  had  even 
in  equity,  but  which  equity  will  enforce  negatively  by  an 
injunction  restraining  the  defendant  from  violating  his 
agreement." 

§  3.  When  it  originated. — The  inadequacy  of  the  rem- 
edy at  law  gave  rise  to  the  jurisdiction  of  equity,  which 
was  invoked  for  the  specific  performance  of  contracts  at  a 


'Hunt  V.  Rousmanier,  i  Peters  S.  C,  i,  14.  A  court  of  equity  will  not 
carr)'  out  the  legal  intention  and  effect  of  a  contract  in  every  case,  but  only 
when  it  is  strictly  equitable  to  do  so.  Canterbury  Aqueduct  Co.  v.  Ensworth, 
22  Conn.,  608  ;  Backus'  Appeal,  58  Pa.  St.,  186. 

"^  Smith  on  Contr.,  296 ;  Harnett  v.  Yielding,  2  Sch.  &  Lef.,  586  ;  Tasker  v. 
Small,  3  M.  &  C,  63. 

'  Fry  on  Specif.  Perform.,  p.  6. 

*  As  the  grounds  and  scope  of  the  jurisdiction  of  equity  in  the  specific  en- 
forcement of  contracts  will  fully  appear  in  subsequent  chapters,  we  refrain  from 
extended  comment  here. 


4  DEFINITION    AND    NATURE.  §  4. 

very  early  date.  A  case  is  reported  in  the  Year  Book  3, 
Edward  IV.,  in  which  it  was  said  by  counsel,  "If  I 
promise  to  build  a  house  for  you,  if  I  do  not  build  it,  you 
shall  have  a  remedy  by  subpoena."  To  which  the  chan- 
cellor is  reported  to  have  answered,  "He  shall.'"  In  the 
twenty-first  of  Henry  VII.,  Chief  Justice  Pinneux,  speak- 
ing of  the  remedies  for  the  non-performance  of  contracts, 
says  :  "  If  a  man  bargain  with  another  that  he  shall  have 
his  land  for  ten  pounds,  and  that  he  will  make  him  an  es- 
tate therein,  by  such  a  day,  and  he  do  not  make  the  estate, 
an  action  upon  the  case  lies  ;  but  it  is  to  be  observed,  in 
that,  he  shall  only  recover  damages.  But  by  subpoena, 
the  chancellor  may  compel  him  to  execute  the  estate,  or 
imprison  him.'"  The  jurisdiction  of  equity  in  this  regard 
was,  however,  questioned  so  late  as  the  fourteenth  of  James 
I.  ;  though,  at  that  period.  Lord  Ellesmere  stated  that 
when  the  law  could  not  give  a  lease,  or  a  thing  promised, 
but  damages,  there  was  some  cause  to  compel  the  party  to 
perform  the  thing  promised.^  In  the  second  of  Charles 
I.,  such  suits  had  become  common ;  and  the  Court  of 
Queen's  Bench  refused  to  grant  a  prohibition  against  a  suit 
for  a  specific  performance,  because  the  plaintiff  could  not 
sue  at  law  to  assure  land,  but  only  to  recover  damages.* 
The  jurisdiction  in  time  became  so  well  established  that  it 
was  said  by  Sir  William  Grant,  that,  supposing  the  con- 
tract to  have  been  entered  into  by  a  competent  party,  and 
to  be  in  the  nature  and  circumstances  of  it  unobjectionable, 
it  was  as  much  of  course  in  chancery  to  decree  a  specific 
performance,  as  to  give  damages  at  law.' 

§  4.  Power  of  court. — A  court  of  equity  may  enforce  or 
set  aside  a  contract  for  land,  enforce  a  lien,  or  exercise  juris- 
diction where  a   legal   remedy  is  obstructed  ;*  and  compel 

*  Story's  Eq.  Juris.,  Sec.  716,  note.  '  Fitz.  Abr.  Tit.  subpoena,  pi.  7. 

"  Powell  on  Contr.,  pp.  5,  6  ;  Tothill,  229.  "  Molineux's  Case  Latch,  172. 

*  Hall  V.  Warren,  9  Ves.,  608. 

*  Davis  V.  Hall,  4  T.  B.  Mon.,  23 ;  Cummings  v.  Coe,  10  Cal.,  529. 


§  5-  CHOICE    OF    REMEDIES.  5 

deeds  of  confirmation  to  be  made  and  possession  to  be 
given  by  a  party,  through  whom  the  title  to  land  is  ob- 
tained, where  the  deeds  are  lost  or  not  recorded.'  It  will 
often  decline  to  interfere  to  enable  a  party  to  acquire  pos- 
session of  property,  when  nevertheless  it  will  refuse  to  dis- 
turb the  possession  where  it  has  been  obtained  without  its 
agency."  On  the  other  hand,  if  a  court  of  equity  has 
properly  acquired  jurisdiction,  it  will  retain  the  case,  and 
settle  matters  between  the  parties  which  do  not  afford 
original  ground  of  jurisdiction.'  Whether  the  fact  that  the 
plaintiff  has  a  remedy  by  mandamus  will  exclude  the  juris- 
diction of  equity  is  unsettled.' 

§  5.  Choice  of  remedies. — Although,  upon  the  breach  of 
a  contract  for  the  sale  and  purchase  of  real  estate,  the  per- 
son injured  thereby  may,  in  general,  sue  either  for  specific 
performance  or  damages,  yet  he  cannot  obtain  both  in  re- 
lation to  the  same  transaction  ;  and  if  he  proceed  for  both, 
the  court  will  compel  him  to  elect.'  When  a  suit  is  enter- 
tained  for  specific  performance,  the  court  will   in  general 

'  Blight  V.  Banks,  6  T.  B.  Mon.,  152.  Where  a  deed  has  been  lost  or  de- 
stroyed without  the  fault  of  the  grantee  before  being  placed  upon  record,  the 
grantor  may  be  compelled  to  make  a  second  deed  in  place  of  the  first,  after  a 
demand  and  refusal  or  failure  to  comply  ;  Conlin  v.  Ryan,  47  Cal.,  71.  An  ac- 
tion for  the  specific  performance  of  a  contract  to  convey  land  is  not  in  all  cases 
beyond  the  jurisdiction  of  courts  prohibited  from  entertaining  actions  in  which 
the  title  to  land  comes  in  question.  In  such  a  case  the  question  of  title  may 
not  be  raised  ;  Lindeman  v.  Rinker,  42  Ind  ,  223. 

^  Crane  v.  Gough,  4  Md.,  316. 

'  Brooks  V.  Stoley,  3  McLean,  523  ;  Pearson  v.  Darrington,  21  Ala.,  169  ;  Mar- 
tin V.  Tidwell,  36  Ga.,  332  ;  FrankHn  Ins.  Co.  v.  McCrea,  4  Greene  Iowa,  229  ; 
Handley  v.  Fitzburgh,  i  A.  K.  Marsh,  24 ;  State  v.  McKay,  43  Mo.,  594 ;  Arm- 
strong V.  Gilchrist,  2  Johns  Ch.,  424,  431  ;  Louder's  Appeal,  57  Pa.  St.,  498. 

'  I  Sug.  V.  &  P.,  8th  Am.  Ed.,  79,  8r. 

'  I  Danl.  Ch.  Pr.,  4th  Am.  Ed.,  815  ;  Royle  v.  Wynne,  Cr.  &  Ph.,  252  ;  Hay- 
wood V.  Covington,  4  Leigh,  373;  Long  v.  Colston,  i  Hen.  &  Munf.,  iii.  Where 
in  an  action  by  the  vendors  of  real  property  against  the  purchaser  for  damages 
for  the  nonfulfilment  of  the  contract,  the  right  to  recover  was  not  established, 
on  the  trial  before  the  court  without  a  jury,  it  was  held  that  a  judgment  for 
specific  performance  could  not  be  granted,  although  the  evidence  was  sufficient 
to  warrant  such  a  suit ;  Towle  v.  Jones,  19  Abb.  Pr.,  449  ;  S.  P.  Cowenhoren  v. 
City  of  Brooklyn,  38  Barb.,  9.  The  recovery  of  damages  in  an  action  for  the 
breach  of  a  covenant  to  grade,  inclose,  and  improve  land  sold  for  a  public 
square,  is  not  a  bar  to  a  subsequent  suit  for  specific  performance  of  a  covenant 
to  keep  the  premises  forever  open  as  a  public  square  ;  Stuyvesant  v.  Mayor, 
etc.,  of  N.  Y.,  II  Paige  Ch.,  414. 


6  DEFINITION    AND    NATURE.  §  6. 

Stay  any  other  action  for  the  same  cause  by  either  party.* 
But  a  person  may  be  entitled  to  damages  for  violations  of 
the  contract  up  to  the  time  of  bringing  the  suit,  with  spe- 
cific performance  for  the  future  ;  or,  to  specific  perform- 
ance generally,  and  damages  for  acts  which  do  not  admit 
of  a  decree  for  specific  performance."  Where,  therefore, 
in  a  contract  to  take  a  lease  for  a  certain  term,  the  lessee 
agreed  to  tear  down  a  house  on  the  premises  and  erect  a 
new  one,  it  was  held  that  the  lessor  might  obtain  specific 
performance  as  to  the  lease,  and  damages  for  not  building 
the  house  ;  the  court  not  having  power  to  decree  specific 
performance  as  to  the  latter.' 

§  6.  Relief  in  what  sense  discretiojiary. — The  granting 
or  withholding  of  a  decree  for  specific  performance  is  said 
by  all  of  the  authorities,  when  speaking  of  the  remedy,  to 
be  in  the  discretion  of  the  court ; '  neither  party  to  a  con- 

'  Duke  of  Beaufort  v.  Gl}Tin,  3  Sm.  &  G.,  226  ;  Fennings  v.  Humphery,  4 
Beav.,  6  ;  Sainter  v.  Ferguson,  i  Mac.  &  G.,  286. 

^  Fennings  v.  Humphery,  supra. 

^  Soames  v.  Edge,  Johns,  669.  See  Mayor  of  London  v.  Southgate,  38  L.  J. 
C,  141.  In  England,  the  rule  that  if  the  plaintiff  fails  in  his  suit  for  specific 
performance,  courts  of  equity  will  not  in  general  entertain  the  question  of  dam- 
ages, but  will  leave  him  to  his  remedy  at  law,  was  changed  by  the  Chancery 
Amendment  Act  of  1858  (Lord  Cairns'  act),  21,  22  Vict.  Ch.,  27.  See  post, 
§  518.  Section  3  of  the  act  provides  for  having  the  damages  assessed  by  a  jury. 
By  the  Judicature  Act  of  1873,  the  court  may  give  either  remedy  as  the  case 
may  require.  Where,  in  a  suit  before  a  colonial  court  which  administered  both 
law  and  equity,  the  bill  was  not  properly  framed  for  specific  performance,  it  was 
held  that  the  court  had  power  to  amend  the  bill  and  give  damages  ;  Larios  v. 
Gurety,  L.  R.  5,  P.  C.  346.  Under  Lord  Cairns'  act  the  court  cannot  give  dam- 
ages unless  it  has  original  jurisdiction  for  specific  performance :  Crampton  v, 
Varna  R.R.,  L.  R.  7,  Ch.  567  :  as  where  a  purchaser  is  entitled  to  damages  for 
breach  of  the  contract,  but,  owing  to  defect  in  the  title  or  other  default  of  the  ven- 
dor, specific  performance  cannot  be  obtained;  Howe  v.  Hunt,  31  Beav.,  420; 
Lowers  v.  Earl  of  Shaftesbury,  L.  R.  2,  Eq.  270;  Ferguson  v.  Wilson,  L.  R.  2, 
Ch.  "]"]  ;  or  where  the  injury  is  small  or  temporary  and  capable  of  compensation 
in  damages,  and  an  injunction  will  be  very  detrimental  to  the  defendant ;  Ayns- 
ley  v.  Glover,  L.  R.  18,  Eq.  555  ;  Leader  v.  Moody,  L.  R.  20,  Eq.  143.  Where 
a  railroad  company,  in  purchasing  land,  agreed  with  the  vendor  to  construct  a 
station  upon  it,  and  the  station  was  afterward  located  elsewhere,  it  was  held 
that  as  the  agreement  was  uncertain  as  to  the  use  of  the  station,  it  was  a  case 
for  damages  instead  of  specific  performance  ;  but  that  in  assessing  the  damages 
every  presumption  was  to  be  made  in  favor  of  the  plaintiff  as  to  the  extent  of 
the  injury ;  Wilson  v.  Northampton  &  Banburg  R.R.,  L.  R.  9,  Ch.  279. 

*  Pyrke  v.  Waddington,  10  Hare,  I  ;  Cox  v.  Middleton,  2  Drew,  209;  Bennett 
V.  Smith,  16  Jur.,  422;  Watson  v.  Marston,  4  De  G.  M.  &  G.,  230;  Waters  v. 
Howard,  i  Md.  Ch.,  112;  Blackwiider  v.  Loveless,  21  Ala.,  371  ;  Hudson  v. 
Layton,  5  Harring.,  74;    Young  v.  Daniels,  2  Iowa,  126;    Rudolph  v.  Covell,  5 


§  6.  RELIEF    IN    WHAT    SENSE    DISCRETIONARY.  7 

tract  being  entitled  to  the  relief  as  a  matter  of  right'  By 
this  is  meant,  not  the  exercise  of  an  arbitrary  and  capri- 
cious will  governed  by  the  mere  pleasure  of  the  court,  but, 
as  compared  with  the  absolute  right  of  a  party  to  a  judg- 
ment at  law  for  damages  upon  the  breach  of  a  contract,  a 
sound  judicial  discretion,  controlled  by  fixed  rules  and 
principles,  in  view  of  the  special  features  and  incidents  of 
each  case.  When  a  contract  concerning  real  estate  is  valid, 
unobjectionable  in  its  nature  and  in  the  circumstances  con- 
nected with  it,  and  capable  of  being  enforced;  and  it  is  just 
and  proper  that  it  should  be  fulfilled,  it  is  as  much  a  mat- 
ter of  course  for  a  court  of  equity  to  decree  a  specific  per- 
formance as  for  a  court  of  law  to  give  damages  for  the 
breach  of  it."  In  exercising  its  discretionary  power,  the 
court  will  act  with  more  freedom  than  when  exercising  its 
ordinary  powers,  and  will  grant  or  withhold  relief  accord- 
ing to  the  case  presented.'     "In  every  case  the  question 

lb.,  126;  Auter  v.  Miller,  18  lb.,  405  ;  Waters  v.  Howard,  8  Gill,  262  ;  Smoot 
V.  Rea,  19  Md.,  398  ;  Hester  v.  Hooker,  7  Sm.  &  Marsh,  768  ;  Tobey  v.  County 
of  Bristol,  3  Story,  800;  Pickering  v.  Pickering,  38  N.  H.,  400;  Humbard  v. 
Humbard,  3  Head,  Tenn.,  100;  Scott  v.  Whitlow,  20  111.,  310;  Doyle  v.  Harris, 
II  R.  I.,  539. 

^  McComas  v.  Easley,  21  Gratt,  23 ;  Hale  v.  Wilkinson,  lb.,  75,  but  a  right  to 
maintain  a  suit  for  specific  performance  accrues  upon  the  refusal  of  the  vendor 
to  fulfil  as  required  by  the  terms  of  the  contract ;  Peters  v.  Delaplaine,  49  N. 
Y.,  362 ;  Beach  v.  Dyer,  93  III,  295. 

*  Hall  V.  Warren,  9  Ves.,  608  ;  Haywood  v.  Cope,  25  Beav.,  140  ;  Rogers  v. 
Saunders,  16  Me.,  92 ;  Griffith  v.  Frederick  County  Bank,  6  Gill  and  John.,  424; 
Pigg  V.  Corder,  12  Leigh.,  69;  Meeker  v.  Meeker,  16  Conn.,  403;  Seymour  v. 
Delancey,  3  Cow.,  445  ;  6  Johns.  Ch.,  222;  King  v.  Morford,  i  N.  J.  Eq.,  274; 
Plummer  v.  Keppler,  26  lb.,  481  ;  Anthony  v.  Leftwich,  3  Rand.,  Va.,  238  ; 
Prater  v.  Miller,  3  Hawks.,  629 ;  Turner  v.  Clay,  3  Bibb.,  ^2  ;  Frisby  v.  Bal- 
lance,  4  Scam.,  287  ;  Broadwell  v.  Broadwell,  6  111.,  599;  McMurtrie  v.  Bennett, 
Harr.,  Mich.,  1:^4;  Dougherty  v.  Hamston,  2  Blackf.,  273;  St.  John  v.  Bene- 
dict, 6  Johns.  Ch.,  in  ;  McWhorter  v.  McMahan,  i  Clark,  N.  Y.,  400;  Hen- 
derson V.  Hayes,  2  Watts,  11.8;  Perkins  v.  Wright,  3  Har.  &  Mchen.,  324; 
Leigh  V.  Crump,  i  Ired.  £q.,  299 ;  Gould  v.  Womack,  2  Ala.,  83  ;  Pulliam  v. 
Owen,  25  lb.,  493;  Ash  v.  Daggy,  6  Ind.,  259;  Howard  v.  Moore,  4  Sneed, 
317;  Minturn  v.  Seymour,  4  Johns.  Ch.,  497;  Jackson  v.  Ashton,  11  Pet.,  229; 
Bowen  v.  Irish,  6  Bosw.,  245  ;  Lowry  v.  Buffington,  6  W.  Va.,  249 ;  Abbott  v. 
L'Hommedieu,  10  lb.,  677;  Stearns  v.  Beckham,  31  Gratt.,  379;  Home 
Manuf.  Co.  v.  Chicago,  L.  J.,  119.     See  post,  §§  11,  170,  note  i. 

^  Tyson  V.  Watts,  i  Md.  Ch.,  13  ;  Fish  v.  Lightner,  44  Mo.,  268 ;  Hudson  v. 
King,  2  Heisk.,  Tenn.,  560;  Quinn  v.  Roath,  37  Conn.,  16;  Higginbottom  v. 
Short,  25  Miss.,  160;  Iglehart  v.  Vail,  75  111.,  63,  and  see  Sweeney  v.  O'Hara, 
lb.,  34;  Willard  v.  Tayloe,  8  Wall,  557;  Marble  Co.  v.  Ripley,  10  lb.,  339;  Bo- 
gan  V.  Daughdrill,  51    Ala.,    312;    Daniel  v,  Fraser,  40  Miss.,    507;  Snell  v. 


8  DEFINITION    AND    NATURE.  §  6. 

must  be  whether  the  exercise  of  the  power  of  the  court  is 
demanded  to  subserve  the  ends  of  justice  ;  and,  unless  the 
court  is  satisfied  that  it  is  right  in  every  respect,  it  refuses 
to  interfere." '  A  valuable  consideration,  particularity,  cer- 
tainty, mutuality,  and  a  necessity  for  performance  are  req- 
uisites upon  which  the  equity  of  a  case  arises."  Equity 
may  refuse  to  decree  the  specific  performance  of  a  contract 
which  it  would  not  set  aside  if  executed.' 

Mitchell,  65  Me.,  48;  St.  Paul  Division  v.  Brown,  9  Minn.,  157.  Specific  per- 
formance will  be  refused  in  all  cases  when  it  is  clearly  inequitable  to  grant  it. 
Munch  V.  Shabel,  37  Mich.,  166.     See  post,  §  109. 

'  Stewart,  J.,  in  O'Brien  v.  Pentz,  48  Md.,  562. 

^  Aston  V.  Robinson,  49  Miss.,  348.  For  a  consideration  of  the  principles 
which  govern  courts  in  granting  relief  by  decreeing  the  specific  performance  of 
contracts,  see  Willard  v.  Tayloe,  8  Wall,  557.  The  equity  jurisdiction  of  the 
United  States  courts  is  derived  from  the  Constitution  and  laws  of  the  United 
States,  and  their  power  and  rules  of  decision  are  the  same  in  all  the  States. 
Noonan  v.  Lee,  2  Black,  499.  Under  the  revised  statutes  of  Maine,  ch.  9,  p. 
10,  a  court  of  equity  may  hear  and  determine  "all  suits  to  compel  the  specific 
performance  of  contracts  in  writing  when  the  parties  have  not  a  plain  and  ade- 
quate remedy  at  law."  But  the  contract  must  be  in  force  as  such.  If  judg- 
ment has  been  obtained  thereon,  it  is  no  longer  a  contract  in  writing  within  the 
provisions  of  the  statute,  but  is  merged  in  the  judgment.  If  judgment  has  been 
entered  upon  the  contract  in  favor  of  the  plaintiff,  he  has  a  sufficient  remedy  at 
law ;  and,  with  few  exceptions,  where  the  contract  has  r.eference  to  personalty 
and  not  realty,  the  proper  remedy  is  at  law,  and  a  court  of  equity  will  not  aid  in 
enforcing  the  provisions  of  it.  Babier  v.  Babier,  24  Me.,  42.  An  action  to  en- 
force specific  performance  of  a  written  contract  in  Massachusetts  under  the  Act 
of  1853,  ch.  371,  should  be  at  law,  praying  relief  in  equity.  Darling  v.  Roarty, 
5  Gray,  71.  It  is  too  late,  after  the  testimony  in  the  cause  is  all  in,  to  object  to 
the  jurisdiction  of  the  court  on  the  ground  that  the  complainant  has  an  adequate 
remedy  at  law.     Gumming  v.  Mayor,  etc.,  of  Brooklyn,  11  Paige  Gh.,  596. 

'  Glitherall  v.  Ogilvie,  i  Dessaus  Eq.,  250;  Barksdale  v.  Payne  Riley,  S.  G. 
Gh.,  174;  Jackson  v.  Ashton,  11  Pet.,  229;  Seymour  v.  Delancey,  3  Cowen, 
445  ;  6  Johns.  Gh.,  222. 


CHAPTER   11. 

CONTRACTS    WHICH    MAY  OR   MAY    NOT    BE    SUBJECTS    OF    THE 

JURISDICTION. 

7.  Insufficiency  of  remedy  at  law. 

8.  Former  rule  that  legal  right  must  first  be  established, 

9.  There  must  be  no  remedy  at  law. 

10.  Not  an  objection  that  there  is  a  possible  legal  remedy. 

11.  What  contracts  enforced. 

12.  Ground  for  enforcement  of  contract. 

13.  Must  be  a  right  of  action. 

14.  Most  frequent  exercise  of  jurisdiction. 

15.  Inadequacy  of  vendor's  legal  remedy. 

16.  Rule  in  respect  to  personal  property. 

17.  Jurisdiction  as  to  goods  when  remedy  at  law  is  insufficient. 

18.  Where  personal  property  has  a  peculiar  value. 

19.  Contracts  for  the  sale  of  stock. 

20.  Sale  of  debt  or  agreement  to  give  security  therefor. 

21.  Where  performance  is  secured  by  a  penalty. 

22.  In  case  of  stipulation  for  payment  of  liquidated  damages. 

23.  Option  of  party  to  do  the  act  or  pay  a  certain  sum. 

24.  Stipulation  in  lease  to  pay  increased  rent. 

25.  When  sum  reserved,  regarded  as  a  penalty. 

26.  Stipulations  enforced  by  injunction. 

27.  Building  contracts. not  in  general  enforced. 

28.  When  specific  performance  of  a  contract  to  build  decreed. 

29.  Distinction  between  a  contract  to  build  and  a  contract  of  sale,  with  a  stipu- 

lation to  erect  a  building. 

30.  Exception  to  rule  as  to  building  contracts. 

31.  Covenants  to  repair  not  in  general  enforced. 

32.  Contract  to  insure  enforced. 

33.  Contracts  of  hiring  and  service  not  enforced. 

34.  Specific  performance  of  revocable  contract  not  decreed. 

35.  Rule  as  to  contracts  for  sale  of  good-will  of  business. 

36.  Specific  performance  of  covenant  to  renew  lease. 

37.  Validity  of  a  contract  in  relation  to  an  expectancy. 

38.  Contracts  concerning  expectancies  enforced  with  caution. 

39.  Contract  as  to  expectancy  to  be  enforced  during  life  of  party. 

40.  Defective  conveyances  by  parents  aided. 

41.  Validity  of  agreement  as  to  disposition  of  property  by  will. 

42.  Agreement  for  separation  of  wife  enforced. 

43.  Specific  performance  of  compromise, 

44.  Agreement  to  arbitrate  not  enforced. 

45.  Specific  performance  of  award. 

46.  When  equity  will  not  enforce  an  award. 

47.  Value  ascertained  by  court  under  agreement  to  arbitrate, 

48.  Enforcement  of  contracts  entered  into  abroad. 

49.  Contracts  which  the  court  has  no  power  to  enforce. 

§  7.   Absence   or  uncertainty  of  legal  remedy. — A  con- 
tract may  be  such  as  by  reason  of  its  subject  matter,  the 


lO     CONTRACTS    WHICH    MAY    OR    MAY    NOT    BE    SUBJECTS.  §   7. 

parties  to  it  or  its  form  confers  no  right  to  recover  dam- 
ages at  law,  but  the  evasion  of  which  would  violate  a  moral 
and  equitable  duty.  Thus,  although  an  action  could  not 
be  maintained  on  a  contract  to  execute  a  conveyance  by  a 
particular  day,  which  was  rendered  impossible  by  the  death 
of  the  contracting  party  previous  to  the  day,  yet  specific 
performance  would  be  decreed  against  the  heir.'  So,  spe- 
cific performance  of  an  agreement  may  be  enforced,  although 
no  injury  has  been  sustained,  but  is  only  anticipated;'  as, 
where  a  surety  on  a  bond,  by  a  bill  in  equity,  compels  the 
obligor  to  pay  the  debt,  although  the  surety  has  not  been 
sued.'  Again,  a  contract  may  be  enforced  in  equity  the 
non-performance  of  which  might  have  been  compensated 
in  damages,  when,  owing  to  peculiar  circumstances,  the 
remedy  at  law  is  not  available.  Accordingly,  where  a  con- 
tract for  the  purchase  of  standing  timber  was  embraced  in 
a  preliminary  memorandum,  and  no  articles  w^ere  afterward 
drawn,  so  that  it  was  doubtful  whether  the  agreement  in 
its  existing  shape  might  not  be  regarded  at  law  as  too  in- 
complete to  afford  any  remedy  there,  it  was  held  that  the 
contract  was  one  which  equity  would  specifically  enforce." 
So,  a  contract  to  purchase  a  debt  was  enforced  on  the 
ground  that  the  debt  had  not  been  so  assigned  as  to  enable 
the  plaintiff  successfully  to  sue  at  law.'  And  where  the 
contract  was  for  the  purchase  of  Government  stock,  the 
fact  that  the  plaintiff  was  not  the  original  holder  of  the 
scrip,  but  only  the  bearer,  which  rendered  it  doubtful 
whether  he  could  maintain  an  action  at  law  upon  the  con- 
tract, was  held  to  give  the  court  jurisdiction.* 


■  I  Mad.  Ch.,  362;  Milnes  v,  Gery,  14  Ves.,  403.  Where  another  instrument 
is  required  to  carry  out  the  agreement  of  the  parties,  specific  performance  will 
be  decreed  in  that  respect.  Fenner  v.  Hepburn,  2  Yo.  &  Col.  C.  C,  159;  Av- 
ery v.  Longford  Kav,  663;  South  Wales  R.R.  Co.  v.  Wythes,  i  K.  &  J.,  186; 
Affd.  5  De  G.  M.  &  G.,  880 ;  Pollard  v.  Clayton,  i  K.  &  J.,  462. 

=  I  Mad.  Ch.,  178 ;  Mitf.  Eq.  PI.  by  Jeremy,  148. 

'  Hayes  v.  Ward,  4  Johns.  Ch.,  132.  ■•  Buxton  v.  Lister,  3  Atk.,  .383. 

'  Wright  V,  Bell,  5  Pri.,  325. 

*  Doloret  v,  Rothschild,  i  Sim.  and  Stu.,  590. 


§  8.  ESTABLISHING    RIGHT    AT    LAW.  II 

§  8.  Establishing  right  at  law. — It  is  said  that  it  was 
formerly  the  practice  to  send  the  parties  to  law,  and  to  en- 
tertain the  suit  only  in  case  the  plaintiff  recovered  dam- 
ages there.'  According  to  Mr.  Butler,  as  the  plaintiff  was 
thus  subjected  to  the  expense  of  two  suits,  the  action  at 
law  was  aftenvard  dispensed  with  when  the  want  or  inade- 
quacy of  the  legal  remedy  was  evident."  Lord  Maccles- 
field asserted  that  "  it  is  not  a  true  bill,  that,  where  an 
action  cannot  be  brought  at  law  on  an  agreement  for  dam- 
ages, a  suit  in  equity  will  not  lie  for  a  specific  perform- 
ance." In  the  case  before  him,'  a  feme  sole  had  given  a 
bond  to  her  intended  husband,  that,  in  case  of  their  mar- 
riage, she  would  convey  her  lands  to  him  in  fee.  The  wife 
died  without  issue,  and  afterward  the  husband  also  died. 
It  was  held  that  although  the  bond  was  void  at  law,  yet  it 
was  good  evidence  of  an  agreement,  and  that  the  heir  of 
the  husband  was  entitled  to  specific  performance  against 
the  heir  of  the  wife.  Mr.  Story  thinks  it  doubtful  whether 
such  a  rule  could  ever  have  been  generally  applied,  and 
that  it  was  probably  confined  to  cases  in  which  the  party 
was  not  entitled  to  any  remedy  at  law,  and  there  was  no 
equity  to  be  administered  beyond  the  law.*  Where  equity 
interferes  to  enforce  a  contract,  in  order  to  avoid  a  multi- 
plicity of  suits,  the  plaintiff,  as  a  general  rule,  must  first 
establish  his  right  at  law\'     But,  at   the  present  day,  there 

'  Dodsley  v.  Kinnersley,  Ambl.,  406  ;  Bettesworth  v.  Dean  &  Chapter  of  St. 
Paul's,  Sel.  Cha.  Cas. ,  67,  69.  The  latter  case  was  decided  in  1726.  A  lease 
had  been  granted  by  the  defendants  before  the  disabling  statute  of  13  Eliz.,  with 
the  covenant  to  renew  for  ninety-nine  years,  and  the  plaintiff  sought  a  renewal 
for  the  term  allowed  by  the  statute,  which  the  court  refused  on  the  ground  that 
no  action  could  have  been  maintained  on  the  covenant  after  the  passing  of  the 
statute.  Lord  Ch.  J.  Raymond  said  :  "  I  take  this  to  be  a  certain  clear  rule  of 
equity,  that  a  specific  performance  shall  never  be  compelled  for  the  not  doing  of 
which  the  law  would  not  give  damages.  The  covenant  to  oblige  them  to  make 
a  lease  for  ninety-nine  years  is  gone,  and  damages  cannot  be  recovered  for  part 
of  a  covenant,  and  I  am  therefore  of  opinion  that  equity  cannot  interfere."  This 
decision  was,  however,  reversed  in  the  House  of  Lords. 

"  Butler's  Reminis.,  39,  40. 

^  Cannel  v.  Buckie,  2  P.  Wms.,  244. 

*  Story's  Eq.  Juris.  Sec,  739. 

*  Pennsylvania  Co.  v.  Delaware  Co.,  31  N.  Y.,  91. 


12     CONTRACTS  WHICH    MAY    OR    MAY  NOT    BE    SUBJECTS.    §  9. 

arc  many  cases  in  which  specific  performance  is  decreed 
where  no  action  on  the  contract  for  damap^es  could  have 
been  maintained.' 

§  9.  When  there  is  a  remedy  at  law,  eqtiity  will  not 
interfere. — A  court  of  equity  will  not  grant  relief  where 
the  complaining  party  will  not  be  deprived  of  any  legal 
right  by  withholding  it,  unless  he  can  show  clearly  that  he 
is  entitled  to  the  relief  sought'  If  the  plaintiff  has  an 
adequate  remedy  at  law,  he  must  seek  his  redress  there.' 
Where  the  city  of  New  Haven  agreed  to  purchase  of  the 
plaintiff  certain  lands,  and  sufficient  water  of  Mill  River 
to  supply  the  city,  and  covenanted  to  construct  a  dam  and 
canal  to  convey  the  surplus  water  for  the  vendor's  use :  a 
bill  filed  by  him  to  enforce  specific  performance  was  dis- 
missed.'    Equity  has  no  jurisdiction  of  a  suit  to  recover 

'  See  Tevis  v.  Richardson,  7  T.  B.  Mon.,  654  ;  Allen  v.  Beal,  3  A.  K.  Marsh, 
554.  The  maxim  that  equity  will  not  decree  the  specific  performance  of  a  con- 
tract upon  which  an  action  at  law  for  damages  will  not  lie,  only  means  such  a 
contract  as  the  law  would  have  recognized  if  sued  in  proper  time  and  under 
proper  circumstances.  White  v.  Butcher,  6  Jones  Eq  ,  231.  On  a  verbal  con- 
tract for  the  sale  of  land,  made  before  the  statute  of  frauds  went  into  operation, 
the  court  denied  relief  on  the  ground  that  an  action  could  only  have  been  main- 
tained at  law  for  a  breach  of  the  contract,  and  that  such  action  was  barred  by 
the  statute  of  limitations.     Smith  v.  Carney,  i  Litt.,  Ky.,  295. 

"^  Parish  v.  Oldham,  3  J.  J.  Marsh,  544. 

*Coombe  v.  Meade,  2  Cranch,  C.  C,  547;  Drew  v.  Haynes,  8  Ala.,  438; 
Field  V.  Jones,  10  Ga.,  229;  Ross  v.  Buchanan,  13  111.,  55  ;  Kyle  v.  Frost,  29 
Ind.,  382;  Smith  v.  Short,  11  Iowa,  523;  Clayton  v.  Carey,  4  Md.,  26 ;  Bone- 
bright  V.  Pease,  3  Mich.,  318  ;  Redmond  v.  Dickerson,  9  N.  J.,  507  ;  Phyfe  v. 
Warden,  2  Edw.  Ch.,  47  ;  Murdock  v.  Anderson,  4  Jones,  Eq.,  ']^  ;  Peeler  v. 
Levy,  26  N.  J.,  Eq.,  330 ;  Marble  Co.  v.  Ripley,  10  Wall.  339 ;  Richmond  v.  Du- 
buque, etc.,  R.R.  Co.,  33  Iowa,  422  ;  Decks'  Appeal,  57  Pa.  St.,  467  ;  Barnes 
v.  Barnes,  65  N.  C,  261  ;  Noyes  v.  Marsh,  123  Mass.,  286.  At  a  sheriff's  sale 
of  land,  the  purchaser  refused  to  take  the  property,  and  it  was  resold  for  less 
money.  It  was  held  that  as  there  was  a  sufficient  remedy  under  the  statute,  the 
court  would  not  entertain  jurisdiction  to  compel  specific  performance  by  the 
first  purchaser.  Orr  v.  Brown,  5  Ga.,  400.  In  Massachusetts,  under  the  statute 
conferring  upon  the  court  jurisdiction  in  equity  to  hear  and  determine  suits  for 
the  specific  performance  of  written  contracts,  "  when  the  parties  have  not  a 
plain,  adequate,  and  complete  remedy  at  common  law,"  Genl.  Sts.,  Ch.  113, 
Sec.  2,  it  was  held  that  specific  performance  could  not  be  granted  where  at 
the  time  the  bill  was  filed  the  only  obligation  on  the  part  of  the  defendant  to  be 
enforced,  was  his  express  promise  to  pay  a  definite  sum  of  money  as  an  instal- 
ment.    Jones  V.  Newhall,  115  Mass.,  244.     Seeposi,  Sec.  15. 

■"Whitney  v.  New  Haven,  23  Conn.,  624.  In  this  case,  it  was  held  that,  as 
the  contract  remained  unexecuted  and  had  been  abandoned  by  the  purchaser, 
there  was  a  remedy  at  law  in  damages.     Quere,  whether  it  might  not  also  have 


§    10.  POSSIBILITY    OF    LEGAL    REMEDY.  I3 

the  value  of  a  supposed  interest  in  certain  property  upon 
an  alleged  contract  of  the  defendant  to  pay  the  same  to  the 
plaintiff.'  So,  if  a  purchaser  of  land  has  taken  a  convey- 
ance, and  there  is  no  fraud  in  the  transaction,  and  he  is 
afterward  evicted  for  want  of  title,  he  has  no  remedy  in 
equity,  but  is  left  to  the  covenants  in  his  deed.'  Where  in 
a  suit  to  compel  specific  performance  of  an  agreement 
to  convey  land,  the  defendant  showed  that  the  title  had 
never  been  in  him,  and  that  performance  had  been  impos- 
sible, and  the  judge  at  special  term,  against  the  defendant's 
objection,  sent  the  case  to  a  referee,  it  was  held  that  the 
judge  should  have  declined  to  proceed  with  the  trial,  and 
should  have  sent  the  case  to  the  circuit ;  the  defendant  hav- 
ing a  right  to  have  the  damages  determined  by  a  jury,  of 
which  he  could  not  be  deprived.'  Where  specific  perform- 
ance was  sought  of  an  agreement  to  grant  a  right  of  way 
for  a  railroad  for  a  term  of  sixty  years,  and,  between  the 
fihng  of  the  bill  and  the  hearing,  the  company  had  obtain- 
ed power  by  statute  to  take  the  land  in  fee ;  the  vice- 
chancellor  considered  this  a  strong  reason  for  denying  the 
relief  asked.^  And  where  the  benefit  of  an  agreement 
might  be  obtained  by  an  account  of  profits  and  payment 
of  the  amount  found  due,  and  the  amount  could  be  re- 
covered at  law,  the  court  refused  to  interfere.' 

§  10.  Possibility  of  legal  re7itedy. — The  fact  that  the  com- 
plainant has  a  possible  remedy  at  law,  \vill  not  defeat  the 
jurisdiction  of  equity,  especially  where  such  legal  remedy 
has  been  rendered  doubtful  by  the  fraud  of  the  defendant.' 
An  agreement  between  the  holder  of  a  first,  and  the  holder 
of  a  second  mortgage,  that  the  latter  shall  foreclose,  and,  if 

been  objected  to  the  maintenance  of  a  suit  in  equity,  that  the  relief  asked  re- 
quired of  the  court  a  superintendence  of  the  construction  of  works  of  a  special 
character,  and  to  see  that  they  were  adequate  to  meet  all  the  requirements  of 
the  contract. 

'Stewart  v.  Mumford,  80  III,  192.  ^  Middlekauff  v.  Barrick,  4  Gill,  290. 

^Stevenson  v.  Buxton,  37  Barb.,  13.       ■•  Meynell  v.  Surtees,  3  Sm.  &  Gif.,  loi. 
^Ord  V.  Johnston,  i  Jur.,  N.  S.,  1063. 
*  Richardson  v.  Brooks,  52  Mirs.,  118. 


14       CONTRACTS  WHICH  MAY  OR  MAY    NOT  BE    SUBJECTS.    §  II. 

he  buys  at  the  sale,  pay  the  holder  of  the  first  mortgage  a 
certain  sum,  is  capable  of  being  specifically  enforced,' 
Specific  performance  may  be  decreed  of  an  agreement  not- 
withstanding the  plaintiff"  has  a  concurrent  remedy  in  dam- 
ages, or  has  entered  into  a  negotiation  for  a  money  con- 
sideration which  has  failed.' 

§  1 1,  Conti'-acts  which  will  be  enforced. — Every  contract 
the  subject  of  which  is  susceptible  of  substantial  enjoy- 
ment, should  be  enforced,  provided  always,  •  the  circum- 
stances surrounding  and  connected  with  the  contract  bring 
it  within  the  rules  entitling  the  party  to  equitable  relief." 
In  such  case  a  court  of  equity  will  decree  specific  perform- 
ance, as  a  matter  of  course,  where  the  contract  is  in  writing, 
is  fair  and  certain,  is  upon  an  adequate  consideration,  and 
is  capable  of  being  enforced.*  For  this  purpose,  any  writ- 
ten instrument  for  the  transfer  of  property,  the  terms  of 
which  are  proper,  and  the  meaning  clearly  ascertainable, 
but  where  something  is  omitted  necessary  to  give  it  validity 
at  law,  will  be  regarded  as  a  contract,  or  as  evidence  of  a 
contract,  when  no  injustice  will  be  done  to  innocent  third 
persons  by  its  enforcement.'  A.  and  B.,  who  were  joint 
owners  of  real  estate  in  equal  moieties,  entered  into  an 
agreement  in  waiting,  that  if  either  party  should  wish  to 

'  Livingston  v.  Painter,  19  Abb.  Pr.,  28  ;  28  How.  Pr.,  517 ;  43  Barb.,  270.  In 
this  case,  the  holder  of  the  second  mortgage  agreed  that  if  he  bought  "  in  his 
own  name  or  otherwise,"  at  the  sale  under  the  foreclosure  of  his  mortgage,  he 
would  reduce  the  principal  sum  secured  by  the  first  mortgage,  by  paying,  on  ac- 
count of  the  same,  three  thousand  dollars,  and  also  arrears  of  interest ;  the 
holder  of  the  latter  agreeing  to  waive  his  right  to  foreclose  for  the  whole  prin- 
cipal and  interest.  Under  the  foregoing  agreement,  the  plaintiff  could  not  re- 
cover at  law  anything  beyond  nominal  damages,  without  showing  that  his  mort- 
gage had  been  foreclosed  for  the  whole  principal,  and  that  the  mortgaged 
premises  did  not  bring  sufficient  to  pay  the  mortgage. 

"Greene  v.  Westcheshire  RR.  Co.,  L.  R.  13,  Eq.  44. 

'Johnson  v.  Rickett,  5  Cal.,  218 ;  Bruck  v.  Tucker,  42  lb.,  347. 

■*  Chance  V.  Beall,  20  Ga.,  143  ;  Rogers  v.  Saunders,  16  Me.,  92;  Hopper  v. 
Hopper,  16  N.  J.,  Eq.,  147  ;  a7ite,  %  6. 

'Tiennan  v.  Poor,  i  Gill  &  Johns,  216.  A  valid  contract  between  plaintiff 
and  defendant,  accompanied  by  defendant's  tender  of  performance,  constitutes 
a  good  cause  of  action  in  equity  for  a  specific  performance ;  and  under  the  New 
York  code,  is  such  a  cause  of  action  as  can  be  set  up  as  a  defence  in  another 
action.     Kelly  v.  Dee,  2  Thomp.  &  Cook,  286. 


§§  12,  13-    EQUITY  WILL  NOT  CREATE  A  RIGHT  OF  ACTION.      1 5 

sell  the  property,  he  should  fix  a  price  which  he  would  be 
willing  to  give  or  take,  and  if  not  acceded  to  by  the  other, 
a  sale  of  the  whole  should  be  made  upon  the  best  terms 
that  could  be  obtained.  On  the  death  of  either  party,  his 
executors  or  administrators  were  to  carry  out  the  agree- 
ment. A.  died  leaving  a  widow  and  infant  children,  and 
by  his  will  appointed  his  widow  executrix,  but  forbid  her 
to  sell  the  land.  The  land  was  sold  at  pubhc  auction,  on 
terms  satisfactory  to  A. 's  representatives,  and  beneficial  to 
the  children  ;  and  it  was  held  that  a  decree  enforcing  the 
sale,  passed  the  title  of  the  infants.' 

§  12.  When  specific  performance  decreed. — It  is  a  suffi- 
cient ground  for  the  enforcement  of  a  contract  in  specie, 
that  the  ends  of  justice  can  alone  be  thereby  subserved."  A. 
devised  his  real  estate  to  B.,  and  gave  him  the  use  of  his 
personal  property  for  three  years,  when  the  latter  was  to  be 
divided,  undiminished,  among  A.'s  children.  The  debts  of 
the  testator  were  to  be  paid  out  of  the  profits  of  the  whole 
estate  for  three  years,  if  sufficient ;  if  not,  the  deficiency 
was  to  be  supplied  from  the  lands,  and  the  portion  remain- 
ing was  to  be  held  in  tail.  The  income  of  the  estate  for 
three  years  was  not  enough  to  pay  the  debts,  and  B.  con- 
tracted to  sell  certain  lands  to  C.  for  that  purpose,  but 
died  without  giving  a  deed.  A  conveyance  by  B.'s  heirs, 
and  a  release  of  dower  by  the  widow,  was  decreed  in  favor 
of  C,  on  payment  of  the  purchase  money." 

§  13.  Equity  will  not  create  a  right  of  action. — But  the 
rule  which  requires  a  plaintiff  to  show  a  present  subsisting 
right  of  action  is  equally  regarded  in  equity  as  at  law. 
Although  a  court  of  equity  will  supply  a  remedy  where  none 
exists  at  law,  yet  it  will  not  create  a  right  of  action  where 

^Goddin  v.  Vaugn,  14  Gratt.,  102. 

"  Skinner  v.  Morris  Canal  &  Banking  Co.,  27  N.  J.  Eq.,  364,  A  court  of 
equity  has  jurisdiction  to  interfere  and  prevent  the  improper  diversion  of  a  spe- 
cific fund  devoted  to  a  particular  use,  whenever  such  interference  becomes 
necessary  to  prevent  a  great  or  irreparable  injury,  or  to  avoid  a  multiplicity  of 
suits.     Farmer  v.  Vollentine,  7  Nebr.,  498. 

'Campbell  v.  Digges,  4  Har.  &  McHen.,  12. 


1 6       CONTRACTS  WHICH  MAY  OR    MAY  NOT  BE  SUBJECTS.   §   1 4. 

the  law  gives  none/  Where  upon  the  dissolution  of  a 
partnership,  one  partner  gave  to  the  other  a  bond  of  in- 
demnity against  the  debts  of  the  concern,  and  the  principal 
debtor  died  insolvent,  whereupon  the  obligee  filed  a  bill 
against  the  sureties  for  a  specific  performance  of  the  con- 
tract, and  it  was  not  alleged  that  the  complainant  had  yet 
sustained  any  damage  on  account  of  the  alleged  default, 
and,  as  upon  the  happening  of  such  a  contingency,  there 
would  be  an  adequate  remedy  at  law,  it  was  held  on  demur- 
rer, that  the  court  could  not  enforce  such  a  contract."  So 
v/here  the  grantee  of  land  covenants  and  agrees  to  assume 
and  pay  off  a  mortgage  on  the  land  as  part  of  the  purchase 
money,  which  he  fails  to  do,  and  the  mortgagee  commences 
an  action  to  foreclose,  the  contract  of  the  grantee  cannot 
be  specifically  enforced  until  it  is  shown  that  there  will  be 
a  deficiency  on  the  sale  of  the  land,  and  the  amount  of  the 
deficiency.' 

§  14.  Agreements  for  the  sale  of  land. — The  jurisdiction 
of  equity  in  compelling  specific  performance,  is  most  fre- 
quently exercised  in  the  case  of  contracts  concerning  real 
estate  ;  the  remedy  being  applied  not  only  as  between  the 
original  parties,  but  also  as  to  those  who  claim  under  them 
in  privity  of  estate,  representation,  or  title."  Where  parties 
contract  for  the  sale  and  purchase  of  land,  equity,  upon  the 
showing  of  a  proper  case  for  its  interference,  will  decree 
that  a  good  and  sufficient  conveyance  be  made  upon  pay- 
ment of  the  purchase  money."  The  form  of  a  contract  of 
sale  is  not  important,  provided  the  contract  itself  is  in  its 
nature  unobjectionable."  If  there  is  ground  to  infer  an  inten- 
tion to  convey  upon  a  valuable  consideration,  and  the  legal 

'  Hoy  V.  Hansbrough,  i  Freem.,  Miss.  Ch.,  533. 

'  Foote  V.  Garland,  i  Sm.  &  Marsh,  Ch.  95. 

'  Slauson  v.  Watkins,  44  N.  Y.  Supr.  Ct„  73. 

*  Glaze  V.  Drayton,  i  Desau.,  109;  McMorris  v.  Crawford,  15  Ala.,  271  ;  Ewins 
V.  Gordon,  49  New  Hamp.,  444 ;  Nesbit  v.  Moore,  9  B.  Mon.,  508 ;  Tiernan  v. 
Roland,  27  Pa.  St.,  429 ;  Ambrouse  v.  Keller,  22  Gratt.,  769 ;  Laverty  v.  Moore, 
33  N.  Y..  658.     See  Post,  Book  2,  Ch.  i. 

'  Murphy  v.  McVicker,  4  McLean,  252.  *  St,  Paul  Division  v.  Brown,  9  Minn.,  1 57. 


§15-    GROUND  OF  vendor's  CLAIM  TO  THE  REMEDY.     IJ 

estate  does  not  pass,  the  court  will  compel  the  execution  of 
a  proper  instiTiment.'  A  father  promised  to  bequeath  to 
his  son  certain  money  in  consideration  of  the  services  of  the 
son  in  managing  his  father's  estate  ;  and,  in  exchange  for  a 
lot  of  land  conveyed  to  him  by  the  son,  to  devise  two  speci- 
fied lots  of  his  own,  to  the  son.  The  will,  to  the  above 
effect,  being  invalid  for  want  of  three  witnesses,  it  was  held 
that  a  bill  for  specific  performance  as  to  the  land  would  lie.' 
The  doctrine  of  specific  performance  is  applicable  to  con- 
tracts for  any  estate  in  land,  as  a  contract  to  grant  a  lease, 
or  to  renew  a  lease,  or  a  contract  for  the  assignment  of  a 
lease." 

§  15,  Ground  of  vendor  s  claim  to  the  remedy. — As  the 
vendor  of  land  seeks  only  the  payment  of  the  purchase 
money,  it  might  be  contended,  that  he  had  an  adequate 
remedy  at  law,  and  therefore  could  not  sustain  a  bill  for 
the  specific  performance  of  the  contract.  A  moment's  re- 
flection will,  however,  show  that  damages  would  not  restore 
him  to  the  situation  he  would  be  in,  if  the  contract  were 
performed.  Where  the  sale  is  completed,  the  vendor  parts 
with  his  land,  and  gets  what  he  deems  an  equivalent.  But 
after  an  action  at  law,  he  still  has  the  land,  and  in  addition, 
damages  representing  the  difference  between  the  stipulated 
price  and  the  price  which  it  would  probably  bring  if  re-sold, 
together  with  incidental  expenses  and  such  special  damage 
as  he  may  have  sustained.*    He  is,  however,  entitled  to  the 

'Varick  v.  Edwards,  i  Hoffm.,  Ch.  382.  Where  a  vendee  entered  into  posses- 
sion of  land  by  consent  of  the  vendor,  and  under  an  agreement  that  the  vendor 
would  execute  to  him,  upon  payment  of  the  purchase  money,  a  title  bond  con- 
ditioned for  a  conveyance  of  the  land  as  soon  as  the  vendor  obtained  a  deed 
of  the  same,  it  was  held  that  equity  would  decree  the  execution  of  such  bond 
upon  payment  of  the  purchase  money.     Sterling  v.  Klepsattle,  24  Ind.,  94. 

"Maddox  v.  Rovve,  23  Ga.,  431.  Where  it  was  proper  for  trustees  to  convey 
the  legal  title  to  land,  and  one  of  the  trustees  denied  that  he  had  accepted  the 
trust,  and  refused  to  convey,  but  there  was  some  evidence  of  an  acceptance,  the 
court  decreed  a  conveyance  by  him.     Vaughan  v.  Barclay,  6  Whart.,  392. 

'Harding  v.  Metropol.  R.R.,  L.  R.  7,  Ch.  154.     Post,  §36. 

*  Eastern  Counties  R.R.  Co.  v.  Hawkes,  5  House  of  Lds.,  331  ;  Lewis  v.  Lord 
Lechmere,  10  Mod.,  503.  The  sale  may  have  been  made  for  other  than  a  mere 
money  consideration.  Upon  the  purchase  of  land  by  a  railway  company,  the  com- 
pany entered  into  a  covenant  with  the  vendor,  that  a  certain  portion  of  the  land 


1 8      CONTRACTS  WHICH  MAY  OR  MAY  NOT  BE  SUBJECTS.     §   1 5- 

specific  performance  of  the  contract  of  sale,  not  because  the 
reHef  at  law  may  be  inadequate,  but  upon  the  principle  of 
mutuality  of  remedy.  It  has  been  said  that  he  may  main- 
tain a  suit  in  every  case  in  which  the  purchaser  can  sue  for 
specific  performance  ; '  and  this,  notwithstanding  the  pur- 
chase money  has  been  paid  ;  his  right  to  be  relieved  from 
the  responsibilities  appertaining  to  the  ownership,  being 
sufficient  -to  sustain  the  suit."  Where  land  was  sold  to  a 
railroad  company,  it  was  held  not  a  defence  to  the  suit  of 
the  vendor,  that  the  amount  of  the  purchase  money,  and 
the  damages  consequential  on  the  purchase,  were  fixed 
by  the  agreement  of  the  parties  at  a  specified  sum.'  His 
bill  has,  however,  been  dismissed,  when  the  sole  object  of 
it  was  to  obtain  payment  of  the  purchase  money.'  The  doc- 
trine of  equity  that  upon  the  execution  of  the  contract,  the 
land  is  converted  into  money,  and  the  money  into  land,  and 

purchased  "  should  be  forever  thereafter  used  and  employed  as  and  for  a  first-class 
station  or  place  for  the  purpose  of  taking  up  and  setting  down  passengers  travel- 
ing along  the  railway."  The  company  having  broken  their  covenant  by  stopping 
at  this  particular  station  only  such  trains  as  stopped  at  nearly  all  other  stations, 
and  also  by  gradually  withdrawing  from  the  station  the  accommodation  origi- 
nally provided  for  passengers,  it  was  held  that  the  land  owner  was  entitled 
to  a  decree  against  the  company  for  a  specific  performance  of  the  agreement. 
Hood  v.  Northwestern  R.R.  Co.,  8  Eq.,  666;  Affd.,  5  Ch.  App.,  525. 

■  Adderley  v.  Dixon,  i  Sim.  and  Stu.,  607;  Clifford  v.  Turrell,  i  Yo.  and  Col. 
C.  C,  138,  Affd.  9,  Jur.  633  ;  Kenny  v.  Waxham,  6  Madd.,  355  ;  Walker  v.  East- 
ern Counties  R.R.  Co.,  6  Hard.,  594.  Although  a  vendor  of  real  estate  usu- 
ally has  an  adequate  remedy  at  law,  yet  he  has  a  choice  of  remedies.  Pincke  v. 
Curteis,  4  Brown's  Ch.  R.,  329 ;  Carey  v.  Smith,  2  N.  Y.,  60;  Schroeppel  v.  Hop- 
per, 40  Barb.,  425  ;  Bryson  v.  Peak,  8  Ired.  Eq.,  310  ;  Phyfe  v.  Wardell,  5  Paige 
Ch.,  268 ;  Springs  v.  Sanders  Phili.  N.  C.  Eq.,  67  ;  Finley  v.  Aiken,  t  Grant  Pa. 
Cas.,  83  ;  Larison  v.  Barb,  4  Watts,  7.7  ;  Old  Colony  R.R.  Co.  v.  Evans,  6  Gray, 
25.  F.  contracted  in  writing  with  M.  to  convey  to  him  certain  lands  for  a  stipu- 
lated price,  to  be  made  in  two  payments.  F.  was  to  do  certain  work  on  the 
land,  for  which  he  was  to  have  the  right  to  all  the  timber  thereon,  with  two  years 
to  remove  the  same.  At  a  given  day  M.  was  to  make  the  first  payment  and  have 
possession,  and  he  was  to  leave  a  road  open  so  that  F.  could  have  free  access  to 
the  timber.  The  contract  was  signed  by  both  parties.  F.  filed  a  bill  for  specific 
performance,  alleging  that  he  had  done  the  work,  and  was  ready  and  wilhng  to 
fulfil  the  balance  of  his  contract,  but  that  M.  refused  to  pay  any  portion  of  the 
purchase  price,  or  receive  the  land.  Held  that  the  bill  should  not  be  dismissed 
for  want  of  equity.     Forsyth  v.  McCauley,  48  Ga.,  402. 

^ Shaw  v.  Fisher,  2  De  G.  and  S.,  11  ;  Wayne  v.  Price,  3  lb.,  310;  Cheale  v. 
Kenward,  3  De  G.  and  J.,  27. 

■•"Webb  V.  Direct  London,  etc.,  R.R.  Co.,  9  Hare,  129. 

*  Deck's  Appeal,  57  Pa.  St.,  467;  Kauffmani's  Appeal,  55  lb.,  383.  An/e  §9, 
nofe  5. 


§  l6.       IN  THE  CASE  OF  PERSONAL  PROPERTY.  I9 

the  vendor's  lien  for  the  purchase  money,  has  been  mem- 
tioned  as  an  additional  reason  why  the  remedy  should  be 
mutual.'  But  it  has  been  said  that  the  court  will  more 
readily  listen  to  objections  made  against  a  vendor  seeking 
specific  performance,  "because  he  can  get  complete  relief 
at  law.'"  Where  the  contract  has  fallen  through,  leaving 
no  claim  except  that  of  the  vendor  for  compensation  for  a 
breach,  the  court  w^ill  not,  in  general,  exercise  any  jurisdic- 
tion in  his  behalf,  but  will  leave  him  to  his  remedy  at  law." 
§  16.  In  the  case  of  per so7ial  property. — It  is  on  the 
ground  that  the  remedy  at  law  is  adequate,  that  the  court, 
subject  to  exceptions,  will  refuse  to  entertain  suits  in  respect 
to  goods,  stock,  and  other  things  of  a  merely  personal  nat- 
ure.' For,  although  it  is  against  conscience,  that  a  man 
should  be  permitted  to  evade  the  exact  fulfilment  of  any 
bona  fide  contrrict,  yet  payment  of  the  money  value  of 
most  kinds  of  personal  property,  at  the  market  price  in  lieu 
of  its  delivery,  by  enabling  the  purchaser  to  obtain  other 
property  of  the  same  kind,  will  afford  him  full  compensa- 
tion. But  in  all  cases,  w^hatever  may  be  the  nature  of  the 
property,  if  the  plaintiff  has  not  an  adequate  remedy  at 
law,  a  court  of  equity  will  entertain  jurisdiction.'    It  is  not 

'  Fry  on  Specif.  Perform.,  10. 

nVebb  V.  Direct  London  and  Portsmouth  R.R.  Co.,  i  De  G.  M.  and  G.,  7?,!. 

Mbid.  Stuart  v.  London  and  N.  W.  R.R.  Ibid.,  521.  Where  contracts  are 
made  for  the  purchase  of  real  estate  for  public  purposes,  such  as  highways,  rail- 
roads, canals,  parks,  and  the  like,  but  which  contracts  being  altogether  executory, 
are  abandoned,  and  the  vendor  remains  in  possession,  he  must  seek  his  redress  at 
law,  and  not  in  equity.  In  Webb  v.  London  and  Portsmouth  R.R.  Co.,  9  Eng. 
L.  and  Eq.,  249,  on  appeal,  the  defendants  had  entered  into  an  agreement  to 
purchase  certain  lands  not  exceeding  eight  acres,  for  a  proposed  railroad,  and 
to  pay  four  thousand  five  hundred  pounds  for  them,  but  which  were  not  taken, 
though  the  defendants  entered  to  make  a  survey  and  estimate,  and  cut  one  tree, 
and  the  plaintiff  was  not  otherwise  disturbed  in  his  possession  and  enjoyment. 
Held,  not  a  case  for  specific  performance. 

■*  Madd.  Ch.  Pr.,  230  ;  Pooley  v.  Budd,  7  Eng.  L.  &  Eq..  228  ;  14  Beav.,  34  ; 
Coldwell  V.  Myers,  Hard.,  Ky. ,  551;  Madison  v.  Chum,  3  J.  J.  Marsh,  230; 
Cowles  V.  Whitman,  10  Conn.,  121  ;  Justice  v.  Croft,  18  Ga.,  475  ;  Phillips  v. 
Berger,  2  Barb.,  608  ;  Scott  v.  Billgerry,  40  Miss.,  119. 

^ Clark  V.  Flint,  22  Pick.,  231  ;  Roundtree  v.  McLean,  i  Hemp.,  245  ;  Sullivan 
V.  Fink,  I  Md.  Ch.,  59;  Waters  v.  Howland,  lb.,  112;  City  Council  v.  Page, 
Spear,  S.  C.  Ch.,  159;  Hoy  v.  Hansborough,  i  Freem.  Miss.  Ch.,  533;  Lloyd 
V.  Wheatly,  2  Jones'  Eq.,  267  ;  Johnson  v.  Rickett,  5  Cal.,  218  ;  Duff  v.  Fisher, 


20      CONTRACTS  WHICH   MAY  OR  MAY  NOT  BE  SUBJECTS.     §    1 6. 

therefore  a  ground  of  demurrer  to  a  bill,  that  it  seeks  spe- 
cific performance  of  a  contract  relating  to  personalty." 
Where  a  vendee  paid  the  entire  consideration  for  personal 
property,  and  before  its  delivery  the  vendor  was  about  to 
dispose  of  it  in  fraud  of  the  vendee's  rights,  and  it  appear- 
ed that  the  vendor  was  insolvent,  and  that  there  would  be 
difficulty  in  replevying  the  property,  it  was  held  that  the 
vendee  was  entitled  to  an  injunction  in  the  nature  of  spe- 
cific performance.'  Where  the  delivery  of  chattels  is  part 
of  a  contract  otherw^ise  capable  of  being  enforced,  specific 
performance  may  be  decreed.'    An  exception  to  the  general 

15  lb.,  375  ;  Furman  v.  Clark,  11  N.  J.  Eq.,  3  Stock.,  306.  But  contracts  of  this 
description  will  be  weighed  with  greater  nicety  than  such  as  relate  to  lands. 
Mechanics'  Bank  v.  Seton,  i  Pet.,  299 ;  Cutting  v.  Dana,  25  N.  J.  Eq.,  265.  A. 
and  B.  entered  into  an  agreement  in  writing,  by  which  A.  was  to  convey  to  B. 
certain  patent  rights,  which  A.  refused  to  do,  when  B.  filed  a  bill  to  compel 
specific  performance,  which  was  decreed,  B.  having  no  remedy  at  law.  Corbin 
V.  Tracy,  34  Conn.,  325.  Mr.  Story,  Eq.  Juris.,  Sec.  724,  remarks  that  the  su- 
preme court  of  the  United  States  has  manifested  an  inclination  "  to  maintain  a 
tar  more  extensive  jurisdiction  in  equity  to  grant  relief  by  a  specific  performance, 
in  contracts  respecting  personal  chattels,  than  is  at  present  exercised  in  the  En- 
glish courts."  Referring  to  Barr  v.  Lapsley,  i  Wheat.,  151  ;  Mechanics'  Bank 
of  Alexandria  v.  Seton,  i  Peters,  305.  Another  writer  says  that  there  seems 
to  be  a  tendency  throughout  this  country  to  subordinate  the  distinction  between 
contracts  which  relate  to  realty,  and  those  which  refer  to  personalty,  to  the 
general  question  whether  the  plaintiff  is  fairly  entitled  to  more  perfect  relief 
than  he  can  obtain  at  law.  Parsons  on  Contr.,  3d  Ed.,  p.  535.  An  agreement 
entered  into  to  pay  in  gold  coin  should  he  specifically  enforced,  when  gold,  silver, 
and  bank  bills  have  different  market  values.  Hall  v.  Hiles,  2  Bush.,  Ky,,  532. 
Where  a  note  payable  in  gold  was  given  for  land,  and  the  land  was  valued  on  a 
gold  basis,  it  was  held  that  specific  performance  should  be  decreed  irrespective 
of  the  question  whether  treasury  notes  are  a  legal  tender,  and  that  judgment 
should  be  rendered  against  the  maker  for  the  value  of  the  gold  in  paper  currency. 
Hord  V.  Miller,  2  Duvall,  Ky.,  103. 

'  Carpenter  v.  Mu.  Safety  Ins.  Co.,  4  Sandf.,  Ch.  408. 

"^  Parker  v.  Garrison,  61  III,  250.  But  where  a  debtor  agreed  to  transfer  stock 
as  collateral  security  for  a  debt,  and  died  insolvent  before  doing  so,  the  court 
refused  to  enforce  specific  performance  of  the  agreement  to  the  injury  of  other 
creditors.    City,  etc.,  Ins.  Co.  v.  Olmstead,  33  Conn.,  476. 

^  Marsh  v.  Milligan,  3  Jur.,  N.  S.,  979.  Equity  may  enforce  an  agreement  by 
a  holder  of  notes,  to  deliver  them  up  to  the  maker  to  he  canceled,  notwithstand- 
ing they  are  overdue,  and  in  the  hands  of  the  original  payee.      Tuttle  v.  ]\Ioore, 

16  Minn.,  123.  In  this  case,  the  defendant  insisted  that  the  plaintiff  was  not 
entitled  to  the  equitable  relief  sought,  because  he  had  an  adequate  remedy  at 
law,  inasmuch  as  the  notes  were  overdue,  and  in  the  hands  of  the  original 
payee,  so  that  they  could  not  be  used  or  transferred  to  prejudice  his  defence; 
and  no  special  ground,  or  even  apprehension  of  injury,  was  stated  in  the  com- 
plaint calling  for  the  interposition  of  the  court.  To  this,  the  court  replied,  that 
as  the  defendant  expressly  agreed  to  cancel  and  deliver  up  the  notes,  the  grant- 
ing of  the  relief  sou_ght  was  simply  compelling  the  specific  performance  of  his 


§17-  SPECIFIC    DELIVERY    OF    GOODS.  21 

rule  may  also  arise,  where  the  right  to  chattels  enters  into, 
and  is  a  material  part  of,  a  contract  in  relation  to  real  estate. 
A  landlord,  in  letting  a  farm,  contracted  with  the  tenant 
that  the  latter  should  have  the  stock  thereon,  but  afterward 
seized  it  under  a  distress  and  bill  of  sale.  Lord  Eldon 
made  an  order  that  the  stock  be  restored,  holding  that  the 
contract  was  entire,  entitling  the  tenant  to  both  the  estate 
and  the  chattels ;  the  latter  being  essential  to  the  enjoy- 
ment of  the  estate.'  So,  if  the  plaintiff  can  only  be  com- 
pensated in  damages  for  some  of  several  articles  purchased 
by  him,  specific  performance  wi*ll  be  decreed  as  to  all' 

§  1 7.  Specific  delivery  of  goods. — The  rule  that  a  suit 
cannot  in  general  be  maintained  for  the  specific  perform- 
ance of  a  contract  for  the  sale  of  goods,  is  applicable  where 
the  goods  are  to  be  delivered  from  time  to  time  by  instal- 
ments, although  the  damages  must  be  assessed  upon  con- 
jecture as  to  the  future  market  price.'  If,  however,  the 
remedy  at  law  would  be  wholly  inadequate  or  impracticable, 
specific  performance  will  be  decreed.*     Where  a  foreigner 

express  contract,  and  was,  in  truth,  the  only  adequate  and  complete  remedy  for 
the  plaintiff;  that  if  an  action  were  brought  upon  the  notes,  the  plaintiff  might 
be  prevented  from  making  a  successful  defence  in  consequence  of  lapse  of  time, 
death,  removal,  or  forgetfulness  of  witnesses,  the  loss  of  documentary  evidence, 
or  other  contingencies  not  within  his  control ;  and  that  there  was  no  good 
reason  why  the  plaintiff  should  be  subjected  to  this  risk,  nor  any  injustice  in 
compelling  the  defendant  to  do  what  he  agreed  to  do. 

'Nutbrown  v.  Thornton,  10  Ves.,  159, 

''McGowin  v.  Remington,  12  Pa.  St.,  56. 

'Fothergill  v.  Rowland,  L.  R.  17,  Eq.  132  ;  Pollard  v.  Clayton,  i  Kay  &  Johns., 
462.     But  see  Taylor  v.  Neville,  cited  3  Atk,,  384. 

*  And  if  the  legal  remedy  is  insufficient,  a  court  of  equity  may  order  the  de- 
livery up  of  goods  wrongfully  detained.  Bowling  v.  Bitjemann,  2  J.  &  W.,  544. 
"  Though  the  action  of  replevin  is  with  us  a  broader  remedy  than  in  England, 
lying  in  all  cases  when  one  man  improperly  detains  the  goods  of  another,  it  is 
in  no  instance  effective  to  enforce  a  specific  return  of  chattels,  since  a  claim  of 
property  and  bond  given  are  always  sufficient  to  defeat  reclamation,  no  matter 
what  may  be  the  eventual  issue  of  the  contest.  As,  therefore,  our  common  law 
tribunals  are  as  powerless  for  such  a  purpose  as  the  similar  English  courts,  the 
propriety  of  exercising  the  equitable  jurisdiction  must  depend  with  us  on  the 
same  reasons  that  are  deemed  sufficient  to  call  it  into  action  there.  Here,  as 
there,  the  inquiry  must  be  whether  the  law  affords  adequate  redress  by  a  com- 
pensation in  damages  where  the  complaint  is  of  the  detention  of  personal  chat- 
tels. If  not,  the  aid  of  a  court  of  chancery  will  always  be  extended  to  remedy 
the  injury  by  decreeing  a  return  of  the  thing  itself."  Bell,  J  ,  in  McGowin  v. 
Remington,  supra. 


2  2      CONTRACTS  WHICH  MAY  OR  MAY  NOT  BE  SUBJECTS.     §    1 8. 

had  contracted  for  the  sale  of  a  ship  which  subsequently 
arrived  at  an  English  port,  the  removal  of  the  ship  was  re- 
strained by  injunction,  as  an  action  at  law  for  damages 
could  not  be  maintained  by  the  buyer.'  And  where  goods 
of  special  value  were  sold,  and  there  were  no  other  similar 
goods  in  the  market,  a  disposal  of  them  by  the  seller  in 
breach  of  the  contract,  was  restrained  by  injunction.^  If  the 
seller  retain  the  goods  in  trust  for  the  buyer,  or  his  as- 
signee, the  court  will  compel  the  execution  of  the  trust ;  the 
nature  of  the  subject  matter  presenting  no  obstacle  to  in- 
terference by  the  court.'  A  court  of  equity  may  compel 
the  maker  of  a  promissory  note,  who,  having  obtained  pos- 
session of  it  from  the  holder  under  promise  to  return  it  or 
execute  another  note  of  the  same  tenor  and  amount,  has 
destroyed  it,  to  execute  and  deliver  a  new  one.*  So,  where 
an  agent  has  possession  of  goods  for  his  principal,  he  will 
be  enjoined  from  improperly  disposing  of  them,  and  spe- 
cific delivery  be  compelled." 

§  1 8.  Articles  of  exceptional  value. — Goods  which  have 
a  peculiar  value,  as  articles  of  curiosity,  antiquity,  or  affec- 
tion, the  loss  of  which  could  not  be  estimated  in  damages, 
will  be  decreed  to  be  delivered  to  the  person  entitled,  such 
as  :  family  pictures,   furniture,   or  heirlooms ;'  an  ancient 

'  Hart  V.  Herwig-,  L.  R.  8,  Ch.  86o.       ""  Hughes  v.  Greene,  33  L.  J.  Q.  B.,  335. 

'Pooley  V.  Budd,  14  Beav.,  34;  Stanton  v.  Percival,  5  H.  L.  C,  257  ;  Cowles 
V.  Whitman,  lo  Conn.,  121.     See  Ferguson  v.  Paschall,  11  Miss.,  267. 

^McMullen  v.  Vanzant,  73  111.,  190.  An  agreement  in  writing  for  the  con- 
veyance of  land  and  payment  of  the  purchase  money  was  executed  by  both 
parties,  but  left  in  the  hands  of  the  vendor,  with  the  stipulation  that  the  vendee 
should  have  a  duplicate  thereof,  on  payment  of  a  certain  sum.  Held,  that  on 
payment  of  the  amount  by  the  vendee,  no  demand  of  the  duplicate  was  neces- 
sary, but  he  was  entitled  to  specific  performance,  and  that  the  withholding-  of 
the  duplicate  was  a  reasonable  excuse  for  non-fulfilment  on  his  part.  Hull  v. 
Noble,  40  Me.,  459.  Where  plaintiff  sold  his  horse  and  wagon  and  the  good- 
will of  his  business,  which  consisted  of  a  list  of  his  customers,  the  defendant 
agreeing  to  pay  in  instalments,  and,  on  failure  to  do  so  promptly,  to  return  to 
the  plaintiff  the  horse  and  wagon  and  the  list  of  customers,  and  the  payments 
were  not  made,  it  was  held  that  equity  would  enforce  specific  performance.  Pal- 
mer v.  Graham,  I  Pars.  Pa.  Sel.  Cas.,  476. 

'Wood  v.  Rowcliffe,  3  Hare,  304. 

°  Lady  Arundell  v.  Phipps,  10  Yes.,  139  ;  Earl  of  Macclesfield  v.  Davis,  3  V.  & 
B.,  16 ;  Falcke  v.  Gray,  5  Jur.  N.  S.,  645. 


§    19-   WHERE    THE  CONTRACT  IS  FOR  THE  SALE  OF  STOCK.      23 

silver  altar-piece,  noted  for  a  Greek  inscription  and  dedica- 
tion to  Hercules  ;'  the  celebrated  Pusey  horn,  possession 
of  which  was  recovered  by  the  heir  of  the  family  of  Pusey, 
the  case  turning  upon  the  pretuim  affectionis,  independ- 
ently of  the  circumstance  as  to  tenure  ;'  the  dresses,  deco- 
rations, papers,  and  effects  of  a  lodge  of  Freemasons  ;'  a 
tobacco  box  of  a  remarkable  character,  belonging  to  a 
club  ;*  a  box  of  jewels/  So,  specific  performance  will  be 
decreed  of  a  contract  for  the  delivery  of  chattels  which  no 
one  but  the  defendant  can  supply,  and  which  are  necessary 
to  enable  the  plaintiff  to  fulfil  an  engagement  with  a  third 
person  :  as  if  a  man  were  to  contract  to  furnish  timber  to  a 
ship-builder  who  had  agreed  to  complete  a  ship  by  a  given 
time,  which  he  could  not  do  unless  the  timber  was  sup- 
plied by  the  defendant ;  but  not  where  the  delivery  of  the 
chattels  by  the  defendant  is  a  mere  question  of  conven- 
ience— as  the  supply  of  coal  from  an  adjoining  mine,  when 
abundance  of  other  coal  can  be  obtained  in  the  neighbor- 
hood." 

§  19.  Where  the  contract  is  for  the  sale  of  stock. — A 
contract  for  the  sale  of  stock  which  can  be  obtained  in  the 
market,  will  not  in  general  be  specifically  enforced  ;  the 
buyer,  or  seller,  having  a  sufficient  remedy  at  law,  in  the 
market  price  of  such  stock.  Lord  Macclesfield  refused 
to  decree  the  specific  performance  of  an  agreement  for  the 
transfer  of  South  Sea  stock,  for  the  following  reasons  : 
first,   the   nature   of  the   subject   matter  of  the  contract  ; 

*  Duke  of  Somerset  v.  Cookson,  3  P.  Wms.,  390. 

^  Pusey  V.  Pusey,  i  Vern.,  273. 

"  Lloyd  V.  Loaring,  6  Ves.,  773. 

^  Fells  V.  Read,  3  Ves.,  70. 

^  Saville  v.  Tancred,  i  Ves.  Sen.,  loi.  See  Lowther  v.  Lowther,  13  Ves.,  95  ; 
Pearne  v.  Lisle,  Amb.,  'j']  ;  Earl  of  Macclesfield  v.  Davis,  3  V.  &  B.,  16.  In 
an  early  case  in  North  Carolina,  a  contract  for  a  favorite  slave  was  specifically 
enforced,  Chief  Justice  Taylor  saying  that,  ''For  a  faithful  family  slave,  en- 
deared by  a  long  course  of  service  or  early  associations,  no  damages  can  com- 
pensate ;  for  there  is  no  standard  by  which  the  price  of  affection  can  be  ad- 
justed, and  no  scale  to  graduate  the  feelings  of  the  heart."  Williams  v.  How- 
ard, 3  Murphey,  74. 

^  Buxton  v.  Lister,  3  Atk.,  385. 


24      CONTRACTS  WHICH  MAY  OR  MAY  NOT  BE  SUBJECTS.     §   1 9. 

second,  the  circumstance  that  the  defendant  was  not  pos- 
sessed of  the  stock  at  the  time  of  the  contract ;  third,  the 
Hability  to  sudden  rise  and  fall  in  the  stock.'  In  a  subse- 
quent case,  however,  Lord  Hardwicke  granted  specific  per- 
formance of  such  an  agreement  ;'  and  the  rule  has  been 
departed  from  in  other  cases.'  The  same  principles  govern 
in  contracts  for  the  sale  of  stock  as  in  the  sale  of  other 
property,  that  is,  if  a  breach  can  be  fully  compensated  in 
damages,  equity  will  not  interfere  ;  while  it  will  do  so,, 
when,  notwithstanding  the  payment  of  the  money  value  of 
the  stock,  the  -plaintiff  will  still  lose  a  substantial  benefit, 
and  thereby  remain  uncompensated.  If  a  contract  to  con- 
vey stock  is  clear  and  definite,  and  the*  uncertain  value 
of  the  stock  renders  it  difficult  to  do  justice  by  an  award 
of  damages,  specific  performance  will  be  decreed.*  Where 
scrip  certificates  constituted  the  legal  title  of  the  pur- 
chaser of  new  stock,  without  w^hich  he  could  not  main- 
tain an  action  for  the  stock,  their  specific  delivery  was  de- 
creed.' The  rule  of  exclusion  does  not  apply  to  railway 
shares,  which  are  limited  in  number,  and  not  always  to  be 
had  in  the  market.^  A  vendor  of  railway  shares  may 
maintain  a  suit  against  the  purchaser  to  compel  him  to  com- 
plete the  purchase  by  the  execution  and  registration  of  a 
proper  transfer,  and  to  indemnify  the  seller  against  future 
calls.'     Specific  performance  will  be  decreed  of  a  contract 

'  Cud  V.  Rutler,  5  Yin.  Abr.,  538  ;  i  P.  Wms.,  570. 

^  See  Nutbrown  v.  Thornton,  10  Ves.,  161. 

'  Withy  V.  Cottle,  i  Sim.  &  Stu.,  174 ;  Colt  v.  Nettervill,  2  Sim..  304. 

"•White  V.  Schuyler,  i  Abb.  Pr.  N.  S.,  300;  31  How.  Pr,  38;  Treasurer  v. 
Commercial  Co.,  23  Cal.,  390. 

'  Doloret  v.  Rothschild,  i  Sim.  &  Stu.,  590. 

"  Duncuft  V.  Albrecht,  12  Sim.,  189  ;  Wilson  v.  Keating-,  4  De  G.  &  J.,  388  ; 
Cheale  v.  Kenward,  3  lb.,  27  ;  Paine  v.  Hutchinson,  L.  R.  3,  Ch.  388. 

'  Shaw  V.  Fisher,  2  De  G.  &  Sm.,  11  ;  Wynne  v.  Price,  3  lb.,  310 ;  Walker  v. 
Bartlett,  18  C.  B.,  845.  The  plaintiffs,  who  were  dealers  in  stock,  contracted 
to  sell  to  the  agent  of  the  defendant  shares  which  they  had  bought  from,  and 
which  remained  registered  in  the  name  of  C.  On  the  settling  day,  the  agent  of  the 
defendant  gave  the  name  of  the  latter  to  be  inserted  in  the  deeds  of  transfer. 
Transfers,  executed  by  C.  to  the  defendant,  were  delivered  to  the  defendant's 
agent,  who  paid  for  the  shares  out  of  money  given  to  him  by  the  defendant. 
The  defendant  would  not  execute  the  deeds  and  procure  their  registration,  on 


§  20.  CONTRACT    IN    RELATION    TO    DEBTS.  25 

for  the  sale  of  shares  in  a  company,  although  the  sale 
is  subject  to  the  approval  of  the  directors,  unless  the  di- 
rectors refuse  to  permit  the  sale.'  And  an  applicant  for 
shares  in  a  company  will  be  compelled,  after  an  allotment 
in  due  form,  to  accept  the  shares  allotted,  and  to  sign  the 
articles  of  association,  if  he  has  contracted  to  do  so. 
Equity  will  enforce  an  agreement  to  convey  real  estate  and 
to  transfer  shares  in  a  corporation,  both  as  to  the  real  es- 
tate and  the  shares.  ° 

§  20.  Contract  in  relation  to  debts. — The  power  of  the 
court  to  compel  the  specific  performance  of  contracts  is 
limited  to  what  is  expedient  and  practicable.  In  the  case 
of  a  mere  debt  or  claim  to  the  payment  of  money,  or  to 
damages  for  a  breach  of  contract,  there  is  an  adequate 
remedy  at  law.'  So,  specific  performance  will  not  be  de- 
creed of  a  contract  to  borrow  or  lend  money.'  But  it  is 
otherwise  of  an  agreement  to  give  security  for  a  debt,  as :  an 
agreement  to  execute  a  mortgage,  notwithstanding  the 
mortgage  is  to  contain  a  power  of  sale  which  may  be  exer- 
cised without  delay ;  ^  or  an  agreement  to  grant  an  annuity, 

the  ground  that  he  told  his  agent  that  he  intended  to  resell  without  taking  a 
transfer,  and  that  his  name  had  been  given  without  authority.  A  few  months 
after  the  sale  the  company  was  ordered  to  be  wound  up.  A  bill  for  specific  per- 
formance and  indemnity  having  been  filed  before  the  winding  up,  to  which  C. 
was  not  a  party,  it  was  held  that  the  plaintiffs  were  entitled  to  the  relief  asked. 
Paine  v.  Hutchinson,  L.  R.  3,  Eq.  257  ;  Affd.  3,  Ch.  App.  388. 

'  Poole  V.  Middleton,  29  Beav.,  646  ;  Bermingham  v.  Sheridan,  33  lb.,  660. 

"^  New  Brunswick  Land  Co.  v.  Muggeridge,  4  Drew,  686  ;  Oriental  Steam  Co. 
V.  Briggs,  2  Johns.  &  Hem.,  625. 

'  Leach  v.  Forbes,  1 1  Gray,  506. 

''  Kirk  v.  Bromley  Union,  2  Phil.,  640  ;  Greenaway  v.  Adams,  12  Ves.,  401  ; 
Todd  V.  Gee,  17  lb.,  278;  Jenkins  v.  Parkinson,  2  M.  &  K.,  5.  But  a  contract 
for  the  sale  of  a  debt  will  be  specifically  enforced  where  the  complainant  has  not 
a  clear  and  adequate  remedy  at  law,  as  :  where  the  creditors  of  an  insolvent  firm 
agreed  to  sell  their  claims  to  one  of  their  number  at  twentj'-five  per  cent.  Cut- 
ting V.  Dana,  25  N.  J.  Eq.,  265.  An  agreement  in  writing,  by  the  owner  of  a 
mortgage  debt,  that,  on  receiving  money  from  another  person,  he  will  pay  him  a 
specified  portion  of  the  debt  "  when  received,  and  in  manner  as  received,"  is  such 
an  agreement  as  may  be  specifically  enforced.     Buck  v.  Swazey,  35  Me.,  41. 

^Rogers  v.  Chaltis,  27  Beav.,  175;  Siebel  v.  Mosenthal,  31  L.  J.  C,  326 ; 
Larios  v.  Gurety,  L.  R.  5,  P.  C.  346. 

"  Ashton  v.  Corrigan,  L.  R.  13,  Eq.  76  ;  Robinson  v.  Cathcart,  2  Cranch,  590. 
A.  agreed  to  convey  to  B.  a  lot  of  land,  on  condition  that  B.  would  previously 
secure  to  C.  a  sum  of  inoney  by  mortgage  on  the  lot.     Held,  that  equity  might 


26      CONTRACTS  WHICH  MAY  OR  MAY  NOT  BE  SUBJECTS.     §   21. 

and  to  charo;c  it  on  land  or  other  property ; '  or  an  agree- 
ment, by  the  vendor  of  land,  to  release  the  land  from  the 
lien  of  a  mortc^age.''  A.  sold  land  to  B.,  the  purchase  price 
to  be  paid  within  a  short  time,  in  order  to  release  the  land 
from  the  lien  of  certain  mortgages.  B.  paid  part  of  the 
purchase  price,  and  filed  a  bill  to  enjoin  his  vendor,  whom 
he  alleged  was  insolvent,  from  selling,  and  from  committing 
waste,  and  obtained  a  decree.  Afterward,  having  tendered 
good  notes  to  the  full  amount  of  the  purchase  money,  and 
offered  to  perform,  he  filed  an  amended  bill  to  compel  a 
specific  performance  of  the  contract.  In  the  meantime  the 
land  was  sold  under  foreclosure,  and  bought  in  by  B.,  who 
paid  cash  to  the  amount  of  the  lien.  Held,  that  B,  had  a 
right  to  extinguish  the  lien  in  that  way,  and  was  entitled  to 
a  decree.'  When  damages  at  law  would  not  accurately  rep- 
resent the  value  of  the  contract  to  either  party,  a  court 
of  equity  will  grant  relief.  This  was  done  where  the  con- 
tract was  for  the  sale  of  debts  proved  under  two  commis- 
sions of  bankruptcy,  the  court  considering  that  to  compel 
the  plaintiff  to  accept  damages  would  be  to  oblige  him  to 
sell  these  dividends,  which  were  of  unascertained  value,  at 
a  conjectural  price.* 

§  21.  Contract  with  penalty. — Equity  has  regard  to  the 
substantial  agreement  between  the  parties  and  its  real  ob- 
ject, and  not  to  that  which  seems  to  be  the  object.     The 

compel  the  execution  of  the  mortgage ;  or,  if  due,  its  payment  might  be  enforced, 
by  the  decree,  upon  the  interest  of  A.  and  B.  in  the  lot.  Ogden  v.  Ogden,  4  Ohio 
St.,  182.  A  parol  contract  for  a  mortgage  of  personal  property,  based  upon  a 
valuable  consideration,  may  be  enforced  in  a  court  of  equity,  if  the  contract  is 
not  such  as  the  statute  of  frauds  requires  to  be  in  writing.  Triebert  v.  Burgess, 
II  Md.,  452.  C.  promised  to  transfer  to  A.  and  B.,  to  secure  them  for  becoming 
sureties  on  promissory  notes  of  C,  certain  partnership  assets  of  the  firm  of  C. 
and  D.,  C.  being  in  failing  circumstances.  It  was  held  that  A.  and  B.  were  en- 
titled to  a  decree  on  the  filing  of  a  proper  bill  for  the  purpose,  averring  that  the 
notes,  though  made  by  C,  were  the  notes  of  the  firm.  S  lOckley  v.  Davis,  17 
Ga.,  177. 

'  Withy  V.  Cottle,  i  Sim.  and  Stu.,  174;  Lyde  v.  Mynn,  i  M.  and  K.,  683  ; 
Wellesley  v.  Wellesley,  4  M.  and  Cr.,  579. 

^  Bennett  v.  Abrams,  41  Barb.,  619;  Barkley  v.  Barkley,  14  Rich.  Eq.,  12. 

^  Berry  v.  Walker,  6  B.  Mon.,  464. 

*  Adderley  v.  Di.xon,  i  Sim.  and  Stu.,  607. 


§21.  CONTRACT  WITH  PENALTY.  2.7 

circumstance  that  something  has  been  done  purporting  to 
be  an  execution  of  the  agreement,  will  be  no  answer  to  a 
claim  for  specific  performance  if  the  alleged  execution  be 
not  in  accordance  with  the  intentions  of  the  parties.  The 
general  rule  of  equity  is,  that  if  a  thing  is  agreed  to  be 
done,  and  a  penalty  is  given  to  secure  performance,  to  be 
enforced  in  case  the  party  refuses  to  perform,  the  court  will 
fasten  upon  the  express  contract,  and  will  say  to  him,  "  You 
cannot  fall  back  upon  the  penalty,  but  must  do  the  act.'" 
Where  a  clause  for  the  payment  of  a  penal  sum  is  inserted 
in  an  agreement,  the  interference  of  equity  will  depend  upon 
the  question  whether  or  not  the  contract  will  be  satisfied  by 
payment.  If  it  be  stipulated  to  do  one  of  two  things, 
namely,  to  perform  an  act,  or  pay  a  sum  of  money,  the  lat- 
ter will  suffice,  and  there  will  be  no  ground  for  equitable 
procedure  against  the  party  who  has  the  choice.  On  the 
other  hand,  where  the  agreement  is,  that  a  certain  thing 
shall  be  done,  with  a  penalty  added  to  secure  its  perform- 
ance, a  court  of  equity  may,  notwithstanding  the  penalty, 
enforce  the  performance  of  the  very  thing,  and  thus  carry 
out  the  intentions  of  the  parties.''  Thus,  where  a  grantee 
of  land  executed  a  bond,  in  consideration  of  the  conveyance 
to  support  the  grantor  for  life,  and,  in  case  of  neglect  to 
re-convey  the  land,  it  was  held  that  upon  failure  of  the 
grantee  to  perform,  equity  would  decree  a  re-conveyance.^ 


'  ChilHner  v.  Chilliner,  2  Ves.  Sen.,  528 ;  Hobson  v.  Trevor,  2  P.  Wms.,  191  ; 
Parks  V.  Wilson,  10  Mod.,  517;  Winslow  v.  Dawson,  i  Wash.,  118;  Telfair  v. 
Telfair,  2  Desau.  Ch.,  271. 

^  Howard  v.  Hopkins,  2  Atk.,  371  ;  French  v.  Macale,  2  Dr.  and  W.,  269; 
Roper  V.  Bartholomew,  12  Price,  797  ;  Gillis  v.  Hall,  2  Brews.,  Pa.,  342  ;  Broad- 
well  V.  Broad  well,  6  III,  599 ;  Dailey  v.  Litchfield,  10  Mich.,  29, 

^  Robinson  v.  Robinson,  9  Gray,  447.  "The  taking  of  a  bond,  or  other  se- 
curity, for  the  purchase  money,  might  reasonably  lead  to  the  conclusion  that  the 
vendor  trusted  to  such  security,  and  that  the  estate  was  intended  to  be  absolutely 
vested  in  the  vendee." — Fonbl.  Eq.,  Book  I,  ch.  3,  sec.  3,  note  E,  referring  to 
Bond  V.  Kent,  2  Vern.,  2oi  ;  Towell  v.  Heelis,  Ambl.,  724  ;  Nairn  v.  Prowse,  6 
Ves.,  752  ;  Blackburn  v.  Gregson,  i  Bro.,  420  ;  Mackreth  v.  Symmons,  15  Ves., 
329;  Covvell  V.  Simpson,  16  lb.,  278;  Great  v.  Mills,  2  Ves.  and  Bea.,  306; 
'^^dk'i.  ex  parte,  I  Mad.,  356  ;  Gilman  v.  Brown,  i  Mason,  214;  S.  C.,  4  \Vheat., 
255  ;  Wragg  v.  Comp.  Gen.,  2  Desau.  Ch.,  509;  Stouffer  v.  Coleman,  i  Yeates, 
398. 


28      CONTRACTS  WHICH  MAY  OR  MAY  NOT  BE  SUBJECTS.     §   2  2. 

So,  a  contract  to  indemnify  one  against  a  pecuniary  liability 
may  be  specifically  enforced,  although  its  performance  is 
secured  by  a  penalty.' 

§  2  2.  Agreement  to  pay  liqtiidated  damages. — Notwith- 
standing the  contract  stipulates  for  the  payment  of  liqui- 
dated damages  in  case  of  failure  to  perform,  the  court  may 
decree  specific  performance,,  unless  an  option  for  payment 
instead  of  performance  be  given  in  the  contract.''  Where 
a  lessee  agreed  to  grant  an  under-lease,  and  that,  if  the 
landlord  refused  a  license  required  for  that  purpose,  he 
would  pay  one  thousand  pounds  by  way  of  liquidated  dam- 
ages, it  was  held  that  he  could  not  escape  specific  perform- 
ance by  paying  the  money  instead  of  applying  for  the 
license.'  So,  where  an  agreement  for  the  sale  of  land  pro- 
vided that  no  building  should  be  erected  beyond  a  certain 
line,  and  in  case  of  a  violation  of  any  of  the  covenants  or 
stipulations,  a  specified  sum  should  be  paid  as  liquidated 
damages,  an  injunction  was  granted  against  building  in 
breach  of  the  agreement,*  Where  it  was  covenanted  not 
to  carry  on,  or  be  concerned  in  carrying  on,  the  trade  of 
saddler  within  ten  miles  of  a  certain  town,  "under  a  penalty 
of  one  hundred  pounds,  to  be  paid  by  way  of  liquidated 


'  Chamberlain  V.  Blue,  6  Blackf.,  491.  Where  an  administrator  assigned  a  con- 
tract for  the  purchase  of  lands  to  the  defendants,  who  covenanted  and  agreed  to 
take  up  and  cancel  the  contract,  and  to  indemnify  the  administrator  from  all 
damage  which  he  might  sustain  by  reason  of  the  contract,  it  was  held  that  the 
administrator  was  entitled  to  a  specific  performance.  Champion  v.  Brown,  6 
Johns.,  Ch.  398. 

-  Hull  V.  Sturdivant,  46  Me.,  34.  "  Courts  of  equity  will  not  suffer  their  juris- 
diction to  be  evaded  merely  by  the  fact  that  the  parties  have  called  a  sum  dam- 
ages, which  is,  in  fact  and  intent,  a  penalty ;  or.  because  they  have  designedly 
used  language  and  inserted  provisions  which  are  in  their  nature  penal,  and  yet 
have  endeavored  to  cover  up  their  objects  under  other  disguises."  Story's  Eq. 
Juris.,  Sec.  1318.  If  the  owner  of  land  agrees  in  writing  to  convey  it  at  a  cer- 
tain price,  and  by  another  written  agreement  promises  to  forfeit  a  certain  sum 
of  money  if  he  fail  so  to  convey,  equity  will  compel  a  conveyance  upon  perform- 
ance of  the  terms  of  the  agreement  by  the  other  party.  Dooley  v.  Watson,  i 
Gray,  414.  Where  tenants  in  common  made  an  agreement  purporting  to  be 
signed  by  all,  but  in  fact  executed  by  and  delivered  as  the  deed  of  some  of  them 
only,  it  was  held  that  it  might  be  enforced  against  the  latter,  although  it  pro- 
vided for  the  forfeiture  of  a  certain  sum  as  liquidated  damages  in  case  of  breach. 
Hooker  v.  Pynchon,  8  lb.,  550. 

"  Long  V,  Bowring,  33  Beav.,  585.  ■"  Cole  v.  Sims,  5  De  G.  M.  &:  G.,  i. 


§§  23,  24-       STIPULATIONS    IN    LEASE    HOW    REGARDED.  29 

damages  for  every  such  offence,"  and  the  covenantor  en- 
gaged as  a  journeyman  for  another  saddler,  it  was  held  a 
breach  of  the  covenant,  and  that  the  covenantee  was  enti- 
tled to  an  injunction/  So,  a  bond  having  been  given  by  a 
solicitor's  clerk  to  his  employe  in  the  sum  of  one  thousand 
pounds,  to  be  paid  in  case  the  obligor  should  carry  on  the 
business  of  solicitor  within  a  certain  distance,  it  was  held 
that  the  bond  was  not  designed  merely  to  secure  the  price 
of  practicing,  but  to  prevent  it,  and  an  injunction  was 
granted.' 

§  23.  When  contract  deemed  optional. — If  the  agree- 
ment be  construed  as  giving  to  the  party  the  option  to  do 
the  act  or  pay  a  certain  sum,  equity  will  not  interfere.  In 
determining  the  question,  the  court  will  have  regard  to  the 
whole  agreement,  and  not  merely  look  at  the  language  ex- 
pressing the  penal  sum.  It  may  treat  the  word  "penalty" 
as  meaning  liquidated  damages,^  or  the  words  "liquidated 
damages"  as  meaning  a  penalty.*  It  may  do  this,  notwith- 
standing the  contract  be  alternative  in  its  form,  if  the  court 
can  clearly  see  that  the  contract  is  to  perform  one  of  the 
alternatives.  Where,  for  instance,  the  contract  was  for  the 
renewal  of  a  lease  for  a  term  of  three  years,  or  to  answer 
in  damages,  specific  performance  of  the  lease  was  decreed ; 
the  alternative  only  expressing  what  the  law  would  imply." 

§  24.   Stipulations  in  lease  how  regarded. — When  it  is 

'  Jones  V.  Heavens,  L.  R.  4,  C.  D.  636. 

"^  Howard  v.  Woodward,  34  L.  J.  C,  47 ;  but  see  Nobles  v.  Bates,  7  Cow., 
307  ;  Dakin  v.  Williams,  22  Wend.,  201. 

^  Jones  V.  Green,  3  Y.  &  J.,  298. 

■*  Cole  V.  Sims,  supra  ;  Lampman  v.  Cochran,  16  N.  Y.,  275. 

^  Finch  V.  Earl  of  Salisbury,  Finch,  212.  Equity  will  withhold  or  grant  relief 
according  as  the  plaintiff  can  or  cannot  be  fully  compensated  by  the  payment  of 
damag-es.  Skinner  v.  White,  17  Johns.,  357;  Skinner  v.  Dayton,  2  Johns.  Ch., 
431  ;  Hackett  v.  Alcott,  i  Call,  533;  City  Bank  of  Baltimore  v.  Smith,  3  Gill 
&  Johns.,  265  ;  Moore  v.  Platte  County,  8  Mo.,  467.  In  a  case  free  from  fraud, 
the  intention  of  the  parties,  if  it  can  be  ascertained,  must  govern  as  to  whether 
the  sum  specified  is  to  be  regarded  as  a  penalty  or  as  liquidated  damages. 
Durst  V.  Swift,  11  Texas,  273;  Cothreal  v.  Talmadge,  9  N.  Y.,  557  ;  Bagley  v. 
Peddie,  16  lb.,  469.  Contra,  jaquith  v.  Hudson,  5  Mich.,  123.  When  it  is 
doubtful  what  the  parties  really  intended,  the  inclination  of  the  court  is  to  regard 
the  amount  named  as  a  penalty.     Foley  v.  Keegan,  4  Iowa,  i. 


30      CONTRACTS  WHICH  MAY  OR  MAY  NOT  BE  SUBJECTS.     §   24. 

Stipulated  in  a  lease  that  in  case  the  lessee  shall  violate  a 
covenant  contained  therein,  he  shall  pay  an  increased  rent, 
it  is  regarded  as  in  the  nature  of  liquidated  damages,  and  it 
has  been  held  that  upon  an  action  brought  to  recover  a  sum 
thus  reserved,  a  court  of  equity  ought  not  to  interpose,  or 
give  any  relief."  Accordingly,  where  a  lessee  covenanted 
not  to  plough  any  land,  and  in  case  he  did,  to  pay  twenty 
shillings  an  acre  every  year,  the  court  refused  to  enjoin  him 
from  ploughing  the  land.''  So,  where  a  lease  was  made  sub- 
ject to  an  increased  yearly  rent  in  case  the  lessee  did  not 
manage  the  farm  in  a  certain  prescribed  way,  and  also,  in 
case  during  the  last  three  years  of  his  term  he  should  sow 
more  than  seventy  acres  of  clover  in  one  year,  to  an  addi- 
tional rent  of  ten  pounds  a  year  for  every  acre  above  the 
seventy  acres,  it  was  held  that  the  additional  rents  were  in 
the  nature  of  liquidated  damages.'  So,  where  a  lessee  cove- 
nanted not  to  erect  a  weir,  under  the  penalty  of  double  the 
annual  rent,  to  be  recovered  by  distress,  this  was  held  to  be 
liquidated  damages  ;  the  power  of  distress  being  regarded 
as  a  strong  circumstance  in  favor  of  that  view.*  Exceptions 
to  the  rule,  owing  to  the  peculiar  circumstances  of  the  case, 
have  occurred  :  as  where  the  lessee  had  covenanted  not  to 
plough  ancient  meadow,  or  if  he  did,  to  pay  an  increase  of 
rent,  the  court,  upon  his  threatening  to  plough,  granted  an 
injunction.'  If  the  agreement  would  be  unreasonable  un- 
less the  person  stipulating  to  pay  the  sum  had  an  option, 
this  will  be  a  strong  circumstance  for  regarding  the  agree- 
ment as  alternative.  Where  an  administratrix  covenanted, 
under  a  penalty  of  seventy  pounds,  to  renew  a  sub-lease  as 
often  as  she  obtained  a  renewal  of  the  original  lease,  and  it 
appeared  that  the  fines  on  the  head  lease  were  raised  on  re- 
newal according  to  the  then  value  of  the  property,  so  as  to 
render  her  covenant  unreasonable,  except  upon  the  construc- 

'Rolfe  V.  Peterson,  2  Bro.  P.  C,  436.  "  Woodward  v.  Gyles,  2  Vern.,  119. 

^  Jones  V.  Green,  3  Y.  and  J.,  298. 

^Gerrard  v.  O'Reilly,  3  Dr.  and  VV.,  41J. ;  French  v.  Macale,  2  lb.,  269. 
'  Webb  V.  Clarke,  cited,  i  Fonbl.  Eq  ,  1 54. 


§  25.  WHEN    SUM    RESERVED    DEEMED    A    PENALTY.  3 1 

tion  of  its  giving  her  an  option,  the  court  treated  the  sum 
as  Hquidated  damages/  When  a  sum  is  made  payable  if 
certain  things  are  not  done,  and  the  performance  is  also  fur- 
ther secured  by  a  penalty,  the  first  sum  will  be  treated  as 
liquidated  damages  ; '  though  in  one  case,  the  court,  not- 
withstanding this  circumstance,  decreed  that  the  agreement 
should  be  specifically  performed."  Where  it  is  stipulated  in 
a  lease  that,  in  addition  to  an  increased  rent,  the  act  pro- 
vided against  shall  be  a  forfeiture  of  the  covenantor's  inter- 
est, the  sum  is  deemed  a  penalty,  and  not  liquidated  damages.* 
§  25.  When  sum  reserved  deemed  a  penalty. — When  the 
penalty  is  small  compared  with  the  value  of  the  subject  of 
the  contract,  it  is  a  reason  for  regarding  the  sum  reserved 
as  not  in  the  nature  of  an  alternative  agreement'  Where 
a  man,  entertaining  doubts  as  to  what  estate  he  should  in- 
herit, upon  the  marriage  of  his  daughter,  entered  into  a  bond 
in  five  thousand  pounds,  with  a  condition  to  settle  one-third 
of  the  property  he  should  derive  from  his  father,  the  agree- 
ment was  specifically  enforced. °  In  another  case,  in  which 
the  condition  recited  an  agreement  for  a  settlement  com- 
prising a  sum  of  money,  and  also  real  estate,  with  a  penalty 
double  this  sum,  but  without  any  reference  to  the  real  estate, 
specific  performance  was  decreed  of  the  agreement.'  So, 
where  a  contract  for  sale  contained  a  proviso,  that,  if  either 
party  broke  the  agreement,  he  should  pay  one  hundred 
pounds  to  the  other,  specific  performance  was  decreed,  not- 

'Magram  v.  Archbold,  i  Dow,  107. 

=  Ranger  v.  Gt.  Western  R.R.  Co.,  5  House  of  Lds.,  73. 

'Chilliner  v.  Chilliner,  2  Yes.  Sen.,  528. 

"French  v.  Macale,  2  Dr.  and  W.,  269.  A  court  of  equity  will  not  enforce 
specific  performance  of  a  condition  in  a  contract  of  sale,  the  non-fulfihnent  of 
which  will  forfeit  the  estate.  As  the  grantor  has  fixed  his  own  conditions,  he 
can  forfeit  the  estate  at  his  pleasure.  Woodruff  v.  Water  Power  Co.,  10  N.  J. 
Eq.,  489.  Equity  will  not  enforce  a  forfeiture.  Warner  v.  Bennett,  31  Conn.. 
461  ;  Lefforge  v.  West,  2  Ind.,  514;  Smith  v.  Jewett,  40  N.  H.,  530;  White  v. 
Port  Huron,  etc.,  R.R.  Co.,  13  Mich.,  356;  Fitzhugh  v.  Maxwell,  34  lb.,  138; 
Orrv.  Zimmerman,  63  Mo.,  72  ;  Palmer  v.  Ford,  70  III.,  369;  Beecher  v.  Beecher, 
43  Conn.,  556  ;  and  the  court  often  interposes  to  prevent  the  enforcement  of  a 
forfeiture  at  law.     Keller  v.  Lewis,  53  Cal.,  113. 

**  Chilliner  v.  Chilliner,  supra.  "Hobson  v.  Trevor,  2  P.  Wms.,  191. 

^  Prebble  v.  Boghurst,  i  Swanst.,  309. 


32      CONTRACTS  WHICH  MAY  OR  MAY  NOT  BE  SUBJECTS.     §   26. 

withstanding  the  defendant  insisted  that  it  was  the  inten- 
tion of  both  parties,  that  upon  either  paying  one  hundred 
pounds,  the  agreement  should  be  void.'  Where  the  penalty, 
if  paid,  will  go  to  a  different  person  from  the  one  for  whose 
benefit  the  agreement  is  entered  into,  it  will  be  deemed  a 
strong  circumstance  against  regarding  the  agreement  as 
alternative  in  its  nature.  A  father  having,  on  the  marriage 
of  his  son,  given  a  bond,  in  the  penalty  of  twelve  hundred 
pounds,  for  the  payment  of  six  hundred  pounds  to  the  wife's 
father,  his  executors  or  administrators,  if  the  obligor  did  not 
convey  certain  lands  for  the  benefit  of  the  husband  and  wife, 
and  their  issue,  it  was  held  that  as  the  six  hundred  pounds 
paid,  would  not  go  to  the  husband  and  wife  and  their  issue, 
but  to  the  wife's  father  and  his  representatives,  the  obligor 
was  not  at  liberty  to  pay  it  or  settle  the  lands  at  his  elec- 
tion, but  must  perform  the  agreement  to  settle."  If  the 
sum  reserved  be  single,  and  the  subject  of  the  stipulation 
in  its  nature  continuing  or  recurring,  the  sum  will  be  re- 
garded as  a  penalty."  The  plaintiff  and  defendant  being 
partners,  and  it  having  been  agreed  by  them  that  the  plain- 
tiff should  alone  conduct  the  business,  and  that  the  defend- 
ant should  have  the  use  of  a  certain  room  in  the  house 
whenever  he  desired,  and  the  plaintiff  having  given  the  de- 
fendant a  bond  in  five  hundred  pounds,  it  was  held  to  be  a 
security,  and  the  court  restrained  a  suit  for  the  penalty,  and 
granted  an  issue  quantum  danuiificatus  to  ascertain  the 
damages.' 

§  26.  Cozirse  pursued  when  penal  sitm  is  enforced  by 
injtinction. — When  specific  performance  of  stipulations 
protected  by  a  penal  sum  is  enforced  by  injunction,  the 
court  on  an  interlocutory  application  to  dissolve  the  in- 
junction will  not  decide  the  question  whether  the  sum  is 
a  penalty  or  liquidated  damages,  but  will  only  consider 
whether  there  is  ?i  prima  facie  case  for  an  injunction,  and 

Howard  v.  Hopkins,  2  Atk  ,371. 
"Chilliner  V.  Chilliner,  supra;  Roper  v.  Bartholomew,  12  Price,  797. 
'  French  v.  Macale,  2  Dr.  and  W.,  269.     ■*  Sloman  v.  Walter,  i  Bro.  C.  C,  418. 


§   2  7-     RULE    IN    RELATION    TO    AGREEMENTS    TO    BUILD.  ^;^ 

whether  more  mischief  will  be  done  by  granting  than  by 
withholding  it."  As  a  party  is  not  entitled  under  the  con- 
tract to  both  the  liquidated  damages  or  penalty,  and  to 
specific  performance,  or  to  an  injunction,  for  the  same 
breach,  the  court,  in  granting  an  injunction,  will  impose 
on  the  plaintiff  the  terms  of  not  claiming  the  damages  or 
penalty  ;  and  a  recovery  of  the  liquidated  damages  for  a 
breach  will  preclude  him  from  afterward  obtaining  an  in- 
junction." 

§  27.  J^ii/e  in  relation  to  agreements  to  build. — Building 
contracts  will  not  in  general  be  specifically  enforced.' 
There  is  said  to  be  a  dictum  of  Justice  Jenny  to  the  con- 
trary, in  a  case  decided  in  the  eighth  of  Edward  IV.  ;  and 
Lord  Thurlow  maintained  the  same  view."  The  rule  is 
now,  however,  well  settled,  on  account  of  the  uncertainty 
of  such  contracts,  and  the  inability  of  the  court  to  carry 
them  out."  It  has  been  said,  ''  There  is  no  case  of  a  spe- 
cific performance  decreed  of  an  agreement  to  build  a 
house,  because  if  A.  will  not  do  it,  B.  may.  A  specific 
performance  is  only  decreed  where  the  party  wants  the 
thing  in  specie,  and  cannot  have  it  in  any  other  way.'" 
Specific  performance  was  refused  of  a  contract  for  the 
making  of  a  branch  railroad,  which  was  entered  into  dur- 
ing the  pendency  of  a  bill  before  Parliament,  when  several 
of  the  directors  thought  of  withdrawing  the  bill,  and,  as 
the  plaintiff  alleged,  would  have  done  so  but  for  the  con- 
tract in  question.'  Where  a  person  agreed  to  grant  a  lease 
as  soon  as  the  other  party  built  a  house  of  a  certain  value, 

'  Cole  V.  Sims,  5  De  G.  M.  &  G.,  i.        '  Sainter  v.  Ferguson,  i  M.  &  G.,  286. 

^  Wilkinson  v.  Clements,  L.  R.  8,  Ch.  96 ;  City  of  London  v.  Southgate,  38 
L.  J.  C,  141  ;  Mastin  v.  Halley,  61  Mo.,  196;  Ross  v.  Union  Pacific  R.R.  Co., 
I  Woolw.,  26. 

*  Buxton  V.  Lister,  3  Atk.,  385  ;  City  of  London  v.  Nash,  lb.,  512 ;  S.  C.  r, 
Ves.  Sen.  12. 

*  Paxton  V.  Newton,  2  Sm.  &  G.,  437  ;  Lucas  v.  Commerford,,  3  Bro.  C. C, 
166  ;  Mosely  v.  Virgin,  3  Ves.,  184. 

®  Per  Kenyon,  M.  R.,  in  Errington  v.  Aynesley,  2  Bro.  C.  C,  343. 

'  South  Wales  R.R.  Co.  v.  Wythes,  i  K.  &.  J.,  186;.  S..C.  5„De  G.  M.  &.  G.. 


34       CONTRACTS  WHICH  MAY  OR  MAY  NOT  BE  SUBJECTS.     §   28. 

"  according  to  a  plan  to  be  submitted  to  and  approved  by 
the  lessor,"  specific  performance  at  the  suit  of  the  lessor 
was  refused/  A  decree  for  the  specific  performance  of  a 
contract  to  expend  a  certain  sum  in  building,  which  was 
uncertain  as  to  the  particulars  of  the  building,  was  de- 
nied.' But  the  execution  of  a  lease  to  contain  covenants 
to  build  according  to  an  agreement  to  that  effect,  will  be 
decreed  so  as  to  give  the  lessor  a  remedy  upon  the  cove- 
nants/ It  is  said  that  "  in  Scotland  many  contracts  to 
build  are  specifically  performed,  in  respect  of  which  equity 
would  decline  jurisdiction  in  England,  the  Scotch  courts 
appointing  some  properly  qualified  person  under  whose 
superintendence  the  work  is  directed  to  be  executed/" 

§  28.  When  building  contracts  will  be  enforced. — If  the 
w^ork  to  be  done  is  clearly  defined,  and  the  plaintiff  has  a 
material  interest  in  its  execution,  which  cannot  be  ade- 
quately compensated  in  damages,  specific  performance  will 
be  decreed/  Where  a  man,  having  entered  into  articles 
with  a  builder,  died  before  performance  of  the  contract,  it 
was  held  that  his  heir  might  maintain  a  suit  against  the 


^  Brace  v.  Wehnert,  25  Beav.,  348,  ^  Moseley  v.  Virgin,  3  Ves.,  184. 

^  City  of  London  v.  Southgate,  38  L.  J.  C,  141. 

*  Fry   on    Specif.    Perform.,    p.    20 ;    Clark   v.    Glasgow   Assurance    Co.,    i 
M'Queen,  668. 

'•'  It  was  maintained  by  an  eminent  English  judge  that  where  the  covenant  to 
build  or  rebuild  is  definite  as  to  size,  materials,  etc.,  it  ought  to  be  enforced. 
Lord  Rosslyn  in  Moseley  v.  Virgin,  supra.  Mr.  Stoiy  takes  the  same  view, 
on  the  following  grounds  :  "  If  the  suit  is  brought  before  any  building  or  re- 
building by  the  party  claiming  the  benefit  of  the  covenant,  the  damages  must 
be  quite  conjectural,  and  incapable  of  being  reduced  to  any  absolute  certainty ; 
and  if  the  suit  is  brought  afterward,  still  the  question  must  be  left  open,  whether 
more  or  less  than  the  exact  sum  required  has  been  expended  upon  the  building, 
which  inquiry  must  always  be  at  the  peril  of  the  plaintiff.  Such  a  covenant 
does  not  admit  of  any  exact  compensation  in  damages  from  another  circum- 
stance :  the  changing  value  of  the  materials  at  different  times,  according  to  the 
various  demands  of  the  market.  It  seems  against  conscience  to  compel  a  party, 
at  his  own  peril,  to  advance  his  money  to  perform  what  properly  belongs  to  an- 
other, when  it  may  often  happen,  either  from  his  want  of  skill  or  means,  that  at 
every  step  he  may  be  obliged  to  encounter  personal  obstacles,  or  to  make  per- 
sonal sacrifices,  for  which  no  real  compensation  can  ever  be  made.  In  all  such 
cases,  courts  of  equity  ought  not  to  decline  the  jurisdiction,  whenever  the 
remedy  at  law  is  doubtful  in  its  nature,  extent,  operation,  or  adequacy."  Story's 
Eq.  Juris.,  sec.  728.  Referring  to  Stuyvesant  v.  Mayor,  etc.,  of  New  York,  1 1 
Paige  Ch.,  414. 


§  2g.  AGREEMENT  BETWEEN  VENDOR  AND  VENDEE.      35 

personal  representative  of  the  ancestor  and  the  builder,  the 
contract  savoring  of  the  realty.'  And  specific  perform- 
ance of  a  contract  to  build  was  decreed  against  a  tenant 
who,  having  agreed  to  rebuild  the  farm-house,  had  done  so 
on  his  own  land  instead  of  on  his  landlord's.'  In  another 
case  the  defendant  was  compelled  to  alter  the  elevation  of 
a  house  which  had  been  erected  in  contravention  of  a 
covenant.'  Where  a  contract  was  made  between  several 
parties  to  build  a  tavern  at  their  joint  risk  and  expense,  and 
for  their  joint  benefit,  and  one  of  the  parties  furnished 
the  land  to  build  upon,  and  performed  his  part  of  the 
contract,  it  was  held  that  he  was  entitled  to  a  decree 
for  specific  performance ;  the  others  objecting  that  a 
change  of  circumstances  had  rendered  the  project  unad- 
visable.'  A  railroad  company  may  be  compelled  to  per- 
form their  agreement  to  construct  and  maintain  an  arch- 
way under  their  line  to  connect  lands  of  the  plaintiff  sev- 
ered by  the  railroad  ;'  or  to  make  such  roads  and  ways 
through  the  land  as  may  be  necessary  to  connect  severed 
portions." 

§  29.  Where  the  agreement  to  btnld  is  between  vendor 
and  vendee. — There  is  a  distinction  between  a  contract  to 
build  a  house  and  a  contract  of  sale,  with  a  stipulation  to 
erect  a  building  or  do  certain  work.  Where  A.  agreed  to 
sell  land  to  B.,  and  to  make  a  road  of  which  A.  was  to 
have  the  use,  and  B.  was  to  erect  a  house  on  the  land 
which  should  cost  three  thousand  pounds,  it  was  held  that 
the  contract  might  be  specifically  enforced.'  By  the  terms 
of  a  written  agreement,  A.  was  to  do  the  brick-work  and 
plastering  upon  sixteen  tenements,  and,  on  completion,  B. 
was  to  give  to  A.  a  deed  of  three  of  the  tenements.  A. 
having  performed  his  part  of  the  contract,  it  was  held  that 


'  Holt  V.  Holt,  2  Vern.,  322.  "^  Pembroke  v.  Thorpe,  3  Swanst.,  437,  note. 

^  Franklyn  v.  Tuton,  5  Mad.,  469.  *  Birchett  v.  Boiling,  5  Munf.  Va.,  442. 

"*  Storer  v.  Gt.  Western  R.R.  Co.,  2  Y.  &  C.  C.  C,  48. 

*  Sanderson  v.  Cockermouth  &  Workington  R.R.  Co.,  11  Beav.,  497. 

'  Wells  V.  Maxwell,  32  Beav.,  408  ;  Affd.  9,  Jur,  N.  S.,  1021. 


36        CONTRACTS  WHICH  MAY  OR  MAY  NOT  BE  SUBJECTS.    §  3O. 

he  was  entitled  to  ^  decree ;  that,  as  the  houses  w' ere  of 
equal  value,  the  court  might  designate  which  of  them 
should  be  conveyed ;  and  that  A.  was  entitled  to  a  deed  in 
fee  simple,  with  a  covenant  against  incumbrances  made  or 
suffered  by  B.'  Where  a  railroad  company  purchased  land 
upon  the  terms  of  making  thereon  a  road  and  wharf,  spe- 
cific performance  was  decreed.'  An  agreement  by  a  rail- 
road company  with  the  owner  of  land  through  which  the 
road  was  to  pass,  to  construct  and  maintain  a  siding,  wnth 
necessary  approaches  for  public  use,  was  enforced  as  to  the 
construction  of  the  siding/  So,  where  a  railroad  company 
agreed  with  the  vendor  of  land  that  there  should  be  forever 
thereafter  maintained  thereon  a  first-class  station,  it  was  de- 
creed that  the  company  should  supply  the  necessary  accom- 
modation for  such  a  station,  to  be  ascertained  at  chambers." 
When  the  suit  is  brought  by  the  purchaser,  the  contract  is 
sometimes  virtually  enforced  by  permitting  the  purchaser 
to  do  the  work,  and  to  deduct  the  cost  from  the  purchase- 
money." 

§  30.  Effect  of  part  performafice  on  agreement  to  build. 
— The  fact  that  the  contract  has  been  partly  performed,  and 
the  parties  cannot  be  restored  to  their  original  position, 
wnll  sometimes  induce  the  court  to  enforce  it  when  it  would 
not  otherwise  have  done  so.  W^here,  on  a  sale  of  real  es- 
tate, the  purchasers  covenanted  to  make  a  road  and  erect  a 
market-house  on  the  land  without  delay,  and  they  took  pos- 
session and  made  the  road,  but  neglected  to  build  the  mar- 
ket-house, it  was  held  that  they  must  perform  their  con- 
tract in  specie."     In  the  foregoing  case,  the  purchasers  not 


'  Ellis  V.  Burden,  i  Ala.,  458.  "  Wilson  v.  Furness  R.R.,  L.  R.  9,  Eq.  28. 

'  Lytton  V.  Gt.  Northern  R.R.  Co.,  2  K.  &  J.,  394. 

'  Hood  V.  Northeastern  R.R.  Co.,  L.  R.  8,  Eq.  666. 

^  Wells  V.  Maxwell,  supra. 

"  Price  V.  Corp.  of  Penzance,  4  Hare,  506.  In  a  deed  from  A.  to  B.,  A.  re- 
served, from  the  premises  conveyed,  the  right  to  draw  a  certain  quantity  of  wa- 
ter at  all  times  when  B.  or  his  successor  should  not  be  using  sufficient  water  for 
the  accommodation  of  the  factor)'  below  which  was  owned  by  A.  There 
was  a  provision  in  the  deed,  in  connection  with  the  reservation,  that  B.  and  his 


§  31-  RULE    AS    TO    AGREEMENTS    TO    REPAIR.  2)7 

only  had  the  full  benefit  of  the  contract,  but  the  vendor, 
having  parted  with  the  land,  could  not  do  the  work  which 
the  purchasers  had  contracted  to  do,  and  so  ascertain  the 
amount  of  damages  sustained  by  their  non-performance. 
But  the  court  cannot  grant  relief  on  the  ground  of  part 
performance,  when  it  has  no  jurisdiction  over  the  original 
subject  matter  of  the  contract.' 

§  31.  Rule  as  to  agreements  to  repair. — The  specific  per- 
formance of  covenants  to  repair  will  not  usually  be  decreed, 
for  the  reason  that,  with  rare  exceptions,  there  is  an  ample 
remedy  at  law.'  So,  relief  will  not  be  granted  against  the 
forfeiture  by  a  tenant  for  a  breach  of  a  covenant  to  repair, 
when  the  repairs  must  be  made  as  a  condition  of  the  relief, 
and  it  is  necessary  for  the  court  to  entertain  the  question  of 
the  sufficiency  of  them.'  Where,  however,  a  lessee  cove- 
nanted to  repair  after  notice,  and  the  lessor,  having  given 
notice,  afterward  waived  the  default  of  the  lessee,  by  con- 
tinuing to  negotiate,  the  court  relieved  against  the  forfeit- 
ure.'    Specific  performance  of  a  covenant,  in  the  lease  of 

successor  should  keep  a  spout  ten  inches  square  at  the  bottom  of  the  ditch  lead- 
ing to  his  grist-mill,  to  which  A.  should  at  all  times  have  access,  for  the  purpose 
of  exercising  the  right  reserved  in  the  deed.  A.  having  conveyed  his  factory  and 
the  land  connected  with  it  to  C,  together  with  all  the  rights  and  privileges  spe- 
cified in  the  deed  from  A.  to  B.,  it  was  held  that  C.  might  maintain  a  suit  in 
equity  to  compel  B.  to  put  in  the  spout.     Randall  v.  Latham,  36  Conn.,  48. 

■  South  Wales  R.R.  Co.  v.  V^ythes,  i  K.  &  J.,  186. 

'^  City  of  London  v.  Nash,  3  Atk.,  512  ;  Lord  Abinger  v.  Ashton,  L.  R.  17, 
Eq.  376.  An  agreement  to  make  repairs  on  a  mill,  pursuant  to  specifications, 
will  not  be  specifically  enforced,  for  the  reason  that  the  doing  so  would  be  diffi- 
cult, if  not  impracticable.  Reed  v.  Vidal,  5  Rich.  Eq.,  289.  A  court  of  equity 
has  no  jurisdiction  to  enforce  specific  performance  of  an  agreement  by  a  lessor, 
contained  in  the  lease,  to  repair  damages  caused  by  a  fire.  Beck  v.  Allison,  56 
N.  Y.,  367.  Were  the  court  to  attempt  to  do  this,  it  must  first  determine  what 
repairs  are  to  be  made,  when,  and  how,  and  enforce  performance  by  attachment 
as  for  contempt,  in  case  of  disobedience.  "  Then  will  arise  the  question,  whether 
there  has  been  substantial  performance,  and,  if  found  not,  whether  the  defendant 
has  any  such  excuse  therefor,  as  will  exonerate  him  from  the  contempt  charged  ; 
and  in  case  of  performance,  but  not  in  as  beneficial  a  manner  as  adjudged,  the 
compensation  that  should  be  made  for  the  deficiency.  It  is  obvious  that  the 
execution  of  contracts  of  this  description,  under  the  supervision  and  control  of 
the  court,  would  be  found  very  difficult,  if  not  impracticable,  while  the  remedy  at 
law  would,  in  nearly  all,  if  not  in  all  cases,  afford  full  redress  for  the  injury." 
Ibid.,  per  Grover,  J. 

^  Hill  v.  Barclay,  iS  Ves.,  59. 

*  Hughes  V.  Metropolitan  R.R.,  46  L.  J.  C,  583. 


38        CONTRACTS  WHICH  MAY  OR  MAY  NOT  BE  SUBJECTS.    §  3  I. 

a  gravel  pit,  to  make  good  the  ground  at  the  end  of  the 
lease,  was  refused,  for  the  reason  that  the  matter  in  contro- 
versy was  "nothing  more  than  the  sum  it  would  cost  to  put 
the  ground  in  the  condition  in  which,  by  the  covenant,  it 
ought  to  be.'"  But  specific  performance  of  an  agreement  to 
execute  a  lease  to  contain  a  covenant  to  repair,  will  be  de- 
creed, so  as  to  give  a  remedy  for  not  repairing/  Where 
the  repairs  of  a  canal  and  arch  for  the  benefit  of  the  lessee 
of  a  mill  interested  in  them,  were  incidental  and  necessary 
to  the  enjoyment  of  a  right  of  the  plaintiff,  which  was  the 
subject  of  a  distinct  covenant,  a  mandatory  injunction  was 
granted  against  the  violation  of  the  right  by  the  continu- 
ance of  the  non-repair."  Specific  performance  will  not  be 
decreed  of  a  charter  party  providing  for  the  choice  of  the 
crew  and  the  repairing  of  a  ship  to  make  it  seaworthy  ;"  nor 
of  the  covenants  in  a  farming  lease  as  to  repairs,  fences,  and 
the  course  of  husbandry ; '  nor  of  a  contract  to  allow  the 
use  of  a  dock  for  the  repair  of  a  ship.*  Upon  a  bill  filed 
by  a  lessor  for  the  specific  performance  of  a  contract  to  take 
a  lease  if  the  house  were  put  "in  thorough  repair,"  and  the 
drawing-rooms  "handsomely  decorated,  according  to  the 
present  style,"  it  was  held  that  the  terms  employed  w^ere 
too  indefinite  to  be  enforced.'  Specific  performance  of  a 
covenant  by  a  landlord  to  make  repairs  may  be  decreed, 
when  it  appears  that  the  tenant  will  otherwise  be  perma- 
nently injured.'  Where,  in  a  contract  for  a  lease,  it  was 
stipulated  that  the  lessor  should  put  the  house  "in  substan- 
tial and  decorative  repair,"  specific  performance  was  decreed 
in  behalf  of  the  lessee,  with  an  inquiry  whether  the  repairs 
had  been  properly  executed,  and,  if  not,  then  an  inquiry  as 
to  damages."     Equity  will  enforce  specific  performance  by 

'  Flint  V.  Brandon,  8  Yes.,  1 59.  *  Paxton  v.  Newton,  2  Sm.  and  G.,  437. 

^  Lane  v.  Nevvdigate,  10  Ves.,  192.     ^  De  Mattos  v.  Gibson,  4  De  G.  and  J.,  276. 

^  Raynerv.  Stone,  2  Eden.,  128. 

^  Merchant's  Trading  Co.  v.  Banner,  L.  R.  12,  Eq.  18. 

'  Taylor  v.  Portington,  7  De  G.  M.  and  G.,  328. 

*  Valloton  V.  Seignett,  2  Abb.  Pr.,  121. 

*  Samuda  v,  Lawford,  8  Jur.  N.  S.,  739. 


§§  32>   33-      AGREEMENTS    FOR    PERSONAL    SERVICES.  39 

the  defendant  of  a  covenant  to  make  improvements  upon 
his  own  land,  where  the  injury  to  the  complainant  from  the 
breach  of  the  covenant  is  such  that  it  cannot  be  ade- 
quately compensated  in  damages.' 

§  32.  Agreement  to  insure. — Specific  performance  may 
be  decreed  of  a  contract  to  insure  ;  and,  if  a  loss  has  occurred, 
the  court  will  not  turn  the  plaintiff  over  to  an  action  at  law, 
but  will  decree  payment." 

§  33.  Agreements  for  personal  services.  —  Courts  of 
equity  formerly  entertained  jurisdiction  to  enforce  con- 
tracts of  hiring  and  service,  notwithstanding  the  difficulty 
of  carrying  out  such  contracts.  Thus,  specific  performance 
was  decreed  of  a  contract  entered  into  by  the  East  India 
Company  to  employ  a  man  as  a  packer.'  So,  where  a 
skilled  person  entered  into  a  contract  with  a  company  en- 
gaged in  the  manufacture  of  brass,  whereby  he  bound  him- 
self during  his  life  as  their  manager,  the  company  agreeing 
to  pay  him  a  certain  sum  for  every  hundred  weight  of  brass 
wire  made  by  him,  or  by  any  other  person,  for  them  during 
his  life,  payment  was  decreed  for  his  past  services,  and 
specific  performance  for  the  future,  upon  his  again  taking 
charge  of  the  works  pursuant  to  the  contract.*  But  "it  is 
obvious  that  if  the  notion  of  specific  performance  were  ap- 
plied to  ordinary  contracts  for  work  and  labor,  or  for  hiring 
or  service,  it  would  require  a  series  of  orders,  and  a  general 

'  Stuyvesant  v.  Mayor,  etc.,  of  New  York,  11  Paige  Ch.,  414.  An  agreement  in 
a  written  lease  that  the  lessee  shall,  after  the  expiration  of  the  term,  have  fair 
compensation  for  all  improvements  made  by  him  upon  the  premises,  is  such  an 
agreement  as  equity  will  enforce  against  the  lessor,  provided  specific  performance 
is  capable  of  being  made,  and  the  complainant  can  have  adequate  relief  only  in 
equity.  But  alleged  infringements  on  the  rights  of  the  lessee,  during  his  term, 
are  not  proper  subjects  to  be  drawn  in  question,  and  will  not  be  allowed  by  the 
court.     Berry  v.  Van  Winkle,  2  N.  J.  Eq.,  i  Green,  269. 

^  Mead  v.  Davison,  3  Adol.  &  El.,  303 ;  Carpenter  v.  Mu.  Safety  Ins.  Co.,  4 
Sandf  Ch.,  408  ;  Perkins  v.  Washington  Ins.  Co.,  4  Cow.,  645  ;  23  Wend.,  18, 
25  ;  Tayloe  v.  Merchants'  Fire  Ins.  Co.,  9  How.  U.  S.,  405  ;  Union  Mu.  Ins.  Co. 
V.  Commercial  Mu.  Ins.  Co.,  2  Curtis,  C.  C,  524;  2  Phil,  on  Ins.,  582;  i  Duer 
on  Ins.,  66. 

^  East  India  Co.  v.  Vincent,  2  Atk.,  83. 

■•  Ball  v.  Coggs,  I  Bro.  P.  C,  140.  As  to  the  validity  of  contracts  of  service 
for  life,  see  Wallis  v.  Day,  2  M.  and  W.,  273. 


40       CONTRACTS  WHICH  MAY  OR  MAY  NOT  BE  SUBJECTS.    §  34. 

superintendence,  which  could  not  conveniently  be  under- 
taken by  any  court  of  justice.'"  The  specific  performance 
of  a  contract  involving  personal  services,  skill,  or  confi- 
dence, will  not,  therefore,  as  a  rule,  be  decreed ;  nor  a  party 
be  enjoined  from  terminating  such  a  contract.''  The  fol- 
lowing contracts,  specific  performance  of  which  was  refused, 
may  be  mentioned  as  examples : — to  report  law  cases  for 
publication  ; '  to  furnish  drawings  for  maps ; '  to  perform  at 
a  theatre  ; '  as  to  the  work  of  an  apprentice,  or  instruction 
by  the  master  ; "  to  employ  the  lessor  of  a  wharf  as  manager 
in  the  business — the  court  refusing  to  enforce  the  contract 
even  as  to  the  lease,  because  it  could  not  enforce  the  em- 
ployment ; '  as  to  the  working  of  quarries  ;  *  and  coal  mines." 
Where  parties  agreed  for  a  certain  sum  to  work  the  line  of 
a  railroad,  and  keep  the  engines  and  roUing  stock  in  repair, 
a  decree  for  the  specific  performance  of  the  contracf  was 
refused.  **  We  are  asked,"  said  the  court,  '*to  compel  one 
person  to  employ  against  his  will,  another  as  his  confiden- 
tial servant,  for  duties  with  respect  to  the  due  performance 
of  which  the  utmost  confidence  is  required.  Let  him  be 
one  of  the  best  and  most  competent  persons  that  ever  lived, 
still,  if  the  two  do  not  agree,  and  good  people  do  not  al- 
ways agree,  enormous  mischief  might  be  done."'" 

§  34.  Agreements  capable  of  being  revoked. — Specific  per- 
formance will  not  be  decreed  of  a  revocable  contract,  for 

*  Selbome  L.  C.  in  Wolverhampton  and  W.  R.R.  v.  London  and  N.  W.  R.R., 
L.  R.  16,  Eq.  439. 

"  Stocker  v.  Brocklebank,  3  M'n.  and  G.,  250  ;  Chin  nock  v.  Sainsbury,  30  L.  J. 
C,  409 ;  Pickering  v.  Bishop  of  Ely,  2  Y.  and  C.  C.  C,  249. 

'  Clarke  V.  Price,  2  J.  Wils.,  157. 

^  Baldwin  v.  Useful  Knowledge  Soc,  9  Sim.,  393. 

^  This  has  been  held  in  several  cases  in  this  country.  But  in  England,  a  con- 
tract to  perform  at  a  certain  theatre  will  now,  it  seems,  be  enforced  by  an  in- 
junction restraining  the  defendant  from  performing  anywhere  else,  though  it 
was  formerly  held  otherwise.     See  Post,  §  117. 

'  Webb  V.  England,  29  Beav.,  44.         ^  Ogden  v.  Fossick,  32  L.  J.  C,  73. 

«  Booth  V.  Pollard,  4  Y.  and  C.  Ex.,  61. 

°  Pollard  V.  Clayton,  I.  K.  and  J.,  462. 

'°  Knight  Bruce  L.  J.,  in  Johnson  v.  Shrewsbury  &  Birmingham  R.R.  Co.,  3 
De  G.  M.  and  G.,  914. 


§  34-  AGREEMENTS    CAPABLE    OF    BEING    REVOKED.  4I 

the  reason  that  it  would  be  an  idle  exercise  of  power  by  the 
court.'  Where  the  registrar  of  a  consistory  court  agreed  to 
grant  a  deputation  of  his  office,  it  was  held  that  as  such  a 
deputation  was  in  its  nature  revocable,  it  could  not  be  en- 
forced.' The  rule  under  consideration  is  applicable  to 
agreements  to  enter  into  partnership  which  do  not  specify 
the  duration  of  the  partnership,  it  being  competent  for 
either  party  to  dissolve  the  relation  whenever  he  sees 
fit.'  Specific  performance  was  accordingly  refused  of  an 
agreement  entered  into  with  a  company  to  take  a  certain 
number  of  shares  and  to  execute  the  deed  of  settlement 
when  required,  the  defendant  being  able  by  the  rules  of  the 
company,  to  withdraw  within  fourteen  days  after  becoming 
a  partner.*  It  is  on  the  same  principle,  that  specific  per- 
formance will  not  be  decreed  of  a  contract  which  contains 
such  a  covenant  that  the  party  objecting  to.  the  perform- 
ance, may  immediately  deprive  the  other  of  the  benefit  of 
the  agreement,  as  a  contract  for  a  lease  that  is  to  contain  a 
proviso  for  re-entry  on  the  breach  of  a  covenant  which  the 
plaintiff  has  already  broken.'  A  violation  of  the  articles 
during  the  partnership  may,  however,  be  restrained  by  in- 
junction':— such  as  an  intentional  and  continued  neglect  to 

^  Express  Co.  v.  R.R.  Co.,  9  Otto,  191. 

^  Wheeler  V.  Trotter,  3  Swanst.,  174.     Note. 

°  Hercy  v.  Birch,  9  Ves.,  357  ;  Scott  v.  Rayment,  L.  R.  7,  Eq.  112  ;  Meason  v. 
Kaine,  63  Pa.  St.,  335.  Plaintiff  and  defendant  entered  into  an  agreement  where- 
by the  latter  was  to  convey  an  undivided  interest  in  real  and  personal  property 
held  by  him  in  common  with  third  persons,  and  the  plaintiff  was  to  become,  for 
an  indefinite  time,  a  partner  with  the  defendant  and  such  third  persons  in  operat- 
ing the  property.  It  was  further  provided  that  the  defendant  should  advance, 
from  time  to  time,  the  plaintiff's  quota  of  the  funds  necessary  for  the  business 
and  the  improvement  of  the  property  ;  that  the  plaintiff  should  manage  and  di- 
rect the  business  and  improvements,  and  employ  his  time,  skill,  judgment,  and 
experience,  therein,  and  that  the  amount  advanced  for  his  benefit  in  carrying  on 
the  business,  should  be  paid  by  his  skill  and  services  in  the  concern  and  the  gains 
obtained  in  the  enterprise.  Held,  that  as  the  agreement  was  incapable  of  being 
enforced  on  both  sides,  the  decree  of  the  court  below  dismissing  the  bill  must  be 
affirmed  with  costs.     Birch  v.  Smith,  29  Mich.,  166. 

*  Sheffield  Gas  Consumers  Co.  v.  Harrison,  17  Beav.,  294. 

^  Jones  V.  Jones,  12  Ves.,  188. 

^Dietrichsen  v.  Cabburn,  2  Phill.,  52.  "  It  is  impossible  to  make  persons  who 
will  not  concur,  carry  on  business  jointly  for  their  common  advantage.  It  is  that 
which  makes  everything  of  this  kind  exceedingly  uncertain.     It  is  that  which 


42      CONTRACTS  WHICH   MAY  OR  MAY  NOT  BE  SUBJECTS.    §  34. 

insert  the  name  of  a  partner  in  the  firm  name  ;'  or  the  rais- 
ing of  money  by  one  of  the  partners  for  his  private  use  on 
the  credit  of  the  firm  ;^  or  engaging  in  other  business  con- 
trary to  agreement;'  or  seeking  unreasonably  and  in  bad 
faith,  a  sudden  dissolution  which  will  be  productive  of  irre- 
parable injury  ;  *  or  doing  any  acts  during  the  continuance 
of  the  partnership  injurious  to  it."  The  court  will  secure  to 
a  partner  an  interest  in  property  to  which,  by  the  partner- 
ship agreement,  he  is  entitled/  So,  the  execution  of  a  deed 
of  partnership,  according  to  the  terms  agreed,  will  be  de- 
creed in  order  to  secure  the  rights  of  the  parties  under  it ;'  but 
not  unless  the  terms  of  the  partnership  have  been  distinctly 
settled  for  a  definite  time/  A  shareholder  in  a  company 
may  be  specifically  compelled  to  take  the  shares  allotted  to 
him."  An  agreement  that,  upon  dissolution,  a  certain  book 
of  the  firm  shall  belong  to  one  of  the  members,  and  the 
other  have  a  copy  of  it,  may  be  enforced." 

A  contract  for  a  partnership  to  continue  for  a  definite 
period  will  be  specifically  enforced,  and  the  parties  be  de- 
creed to  execute  a  proper  instrument  for  that  purpose  ;  and, 
if  necessary,  the  defendant  will  be  restrained  from  carrying 


makes  the  court,  on  all  such  occasions,  exceedingly  anxious ;  an  anxiety  I  be- 
lieve that  has  been  felt  by  every  Judge  who  has  ever  sat  in  a  court  of  equity, 
that  when  these  disputes  do  arise,  the  parties  should,  if  possible,  come  to  some 
arrangement  between  themselves  to  do  that  for  the  common  benefit,  which  the 
court  cannot  do  otherwise  than  at  the  common  expense.  But  if  the  parties  insist 
on  having  a  declaration  of  their  rights,  the  court  has  over  and  over  again  enter- 
tained the  jurisdiction,  and  must  entertain  the  jurisdiction,  unless  some  one  or 
two,  or  several  partners,  are  to  be  permitted  to  do  just  what  they  like  with  the 
partnership  rights  and  interests."  Lord  Langdale  M.  R,  in  England  v.  Curling, 
8  Beav.,  129. 

'  Marshall  v.  Colman,  2  J.  and  W.,  266. 

^  Ibid.  ^Somerville  v.  Mackay,  16  Yes.,  382. 

^Chavany  v.  Sommer,  i  Swanst.,  511.     JVoie. 

^  Charlton  v.  Poulter,  19  Ves.,  148  ;  Goodman  v.  Whitcomb,  i  J.  and  W.,  389. 

"  Somerby  v.  Buntin,  118  Mass.,  279. 

'  England  v.  Curling,  supra  ;  Wilson  v.  Campbell,  10  111.,  383  ;  W^hitworth  v. 
Harris,  40  Miss.,  483, 

"  Hercy  v.  Birch,  9  Ves.,  357. 

'  Pinkett  v.  Wright,  2  Hare,   130;  New  Brunswick  R.R.  v.  Muggeridge,  4 
Drew,  686. 

'"  Lingen  v.  Simpson,  i  Sim.  and  Stu.,600. 


§  35-  RULE  AS  TO  THE  SALE  OF  A  GOOD- WILL.  43 

on  the  business  under  the  partnership  style  with  other  per- 
sons, and  from  pubHshing  a  notice  of  dissolution.'  Spe- 
cific performance  was  decreed  of  a  contract  to  execute  a 
mortgage  containing  an  absolute  power  of  sale,  in  con- 
sideration of  money  due,  though  with  hesitation  on  the 
part  of  the  court,  as  the  mortgagee  might  sell  the  property 
immediately.''  Contracts  of  partnership  which  are  illegal 
as  amounting  to  sales  of  office,  or  contravening  the  laws 
regulating  trade,  or  otherwise,  will  of  course  not  be  en- 
forced." So,  where  the  agreement  has  reference  to  a  busi- 
ness concerning  which  the  court  has  no  powder  to  enforce 
its  own  orders,  it  will  decline  to  interfere.' 

§  35.  Rule  as  to  the  sale  of  a  good  will. — Specific  perform- 
ance of  a  contract  for  the  sale  of  the  good-will  of  a  busi- 
ness disconnected  from  the  business  premises,  or  from  any 
specific  stock  in  trade,  or  trade  secret,  will  not  be  decreed, 
on  account  of  the  uncertainty  of  the  subject  matter,  and 
the  consequent  inability  of  the  court  to  deal  with  it."  But 
"  where  a  good- will  is  entirely  or  mainly  annexed  to  the 
premises,  and  the  contract  is  for  the  sale  of  the  premises 
and  good-will,  such  a  contract  is  a  fit  matter  for  a  decree  in 
a  suit  for  specific  performance;"'  "the  probability  being 


'England  v.  Curling,  supra.  For  forms  of  a  decree  and  injunction,  in  such 
cases,  see  Ibid.  In  this  case,  Lord  Langdale  said  that  the  agreement  for  a  part- 
nership was  binding  on  the  parties  and  ought  to  be  specifically  enforced,  and  he 
so  directed.  Biit  the  decree  only  went  in  terms  to  the  ordering  of  a  proper 
partnership  deed  to  be  executed,  and  the  continuing  of  an  injunction  which  had 
been  obtained  against  one  partner  acting  contrary  to  his  agreement.  The  cir- 
cumstances of  the  case  made  it  highly  inequitable  for  the  partner  thus  to  do. 
But  in  the  ordinary  case  of  a  mere  executory  agreement  for  a  partnership,  it  is 
questionable  whether  such  an  injunction  would  be  granted. 

*  Hermann  v.  Hodges,  L.  R.  16,  Eq.  18. 

'Hughes  V.  Statham,  4  B.  &  C,  187  ;  Knowles  v.  Houghton,  il  Ves.,  168. 

*  NewbeiTy  V.  James,  2  Men,  446.  See  Williams  v.  Williams,  3  lb.,  157; 
Green  v.  Folgham,  i  Sim.  &  Stu.,  398  ;  Yovatt  v.  Wynyard,  i  J.  &  W.,  394 ; 
ante,  §  n;  post,  §§49,  117. 

^Baxter  v.  Connoly,  i  J.  &  W.,  576;  Bozon  v.  Farlow,  i  Men,  459;  Coslake 
V.  Till,  I  Russ.,  376. 

°Kindersley,  V.  C,  in  Darbey  v.  Whitaker,  4  Drew,  134;  Chissum  v.  Dewes 
5  Russ.,  29;  Mummery  v.  Paul,  i  C.  B.,  316. 


44      CONTRACTS  WHICH  MAY  OR  MAY  NOT  BE  SUBJECTS.    §  35. 

that  the  old  customers  will  resort  to  the  old  place.'"  And 
where  the  seller  of  the  good-will  of  a  business  covenants 
not  to  carry  on  the  same  trade  within  certain  limits,  a  breach 
of  the  covenant  will  be  restrained  by  injunction."  This 
was  done  in  a  case  where  a  solicitor,  in  selling  his  business, 
agreed  not  to  practice  as  a  solicitor  in  any  part  of  Great 
Britain  for  twenty  years.'  An  agreement,  for  a  valuable 
consideration,  not  to  practice  medicine  w^ithin  twelve  miles 
of  a  certain  place,  was  held  not  unreasonable,  and  a  breach 
of  it  restrained."  A  coach-maker,  having  sold  his  share  of 
the  business  to  his  partner,  with  an  undertaking  not  to  be 
concerned  in  any  coach  running  from  Reading  to  London, 
Lord  Eldon,  upon  a  bill  filed  for  specific  performance  of 
the  agreement,  and  for  an  injunction,  granted  the  injunc- 
tion until  the  answer.'  If  the  good-will  consists  of  a  trade 
secret,  the  seller  will  be  restrained  from  disclosing  or  using 
it  in  fraud  of  the  buyer.'  The  breach  of  a  covenant  by 
the  purchaser  of  land,  that  the  vendor  should  have  the  ex- 
clusive right  to  supply  beer  to  any  public-house  built  there- 
on, was  restrained  by  injunction.'  But  where  a  party 
agreed  not  to  sell  water  from  a  well  to  the  injury  of  cer- 
tain water-works,  the  court  declined  to   interfere,  for  the 

'Lord  Eldon  in  Cruttwell  v.  Lye,  17  Ves.,  346.  As  to  the  nature  of  a  good- 
will, see  Potter  v.  Commrs.  of  Revenue,  10  Exch.,  147 ;  Allison  v.  Monkwear- 
mouth,  4  Ell.  &  BL,  13. 

"^  But  not  from  setting  up  a  similar  business.  Cruttwell  v.  Lye,  supra  ; 
Shackle  v.  Baker,  14  Ves.,  468.  Equity  will  restrain  a  person  from  setting  up  a 
trade  in  opposition  to  his  agreement,  although  he  has  agreed  not  to  do  so  under 
a  penalty,  even  when  he  has  paid  the  penalty ;  a  penalty  being  a  mere  security 
for  the  performance  of  the  contract,  and  not  the  price  for  doing  what  a  man  has 
expressly  agreed  not  to  do.  So  the  naming  of  a  sum  as  liquidated  damages 
would  not  in  itself  conclusively  show  that  the  parties  contemplated  the  right  to 
do  the  act  upon  payment  of  the  amount.  To  hav-e  that  effect,  it  must  appear 
from  the  whole  contract  that  the  stipulated  sum  was  to  be  paid  in  lieu  of  per- 
formance of  the  agreement,  and  was  an  alternative  which  the  covenantor  had 
the  option  to  adopt.  Ropes  v.  Upton,  125  Mass.,  258.  See  Dooley  v.  Watson, 
I  Gray,  414  ;  Hardy  v.  Martin,  i  Cox,  26, 

'Whittaker  v.  Howe,  3  Beav.,  383. 

^McClurg's  Appeal,  58  Pa.  St.,  51.  See  Butler  v.  Burleson,  16  Vt.,  176; 
Beard  v.  Dennis,  6  Ind.,  200. 

'Williams  v.  Williams,  2  Swanst.,  253. 

*Bryson  v.  Whitehead,  i  Sim.  &  Stu.,  74. 

'  Catt  v.  Tourle,  L.  R.  4,  Ch.  654. 


§  35-  RULE  AS  TO  THE  SALE  OF  A  GOOD-WILL.  45 

reason  that  it  would  be  necessary  to  inquire  every  time  the 
water  was  sold,  whether  it  was  done  with  or  without  in- 
jury.' An  agreement  was  entered  into  by  several  persons 
in  the  same  trade,  that  one  of  them  should  make  an  offer 
for  a  public  contract  at  a  less  price  than  the  rest,  and  if 
successful,  should  take  certain  quantities  of  the  required 
materials  from  the  others.  One  of  them  having  made  an 
offer  in  breach  of  the  agreement,  and  obtained  a  contract, 
an  injunction  was  granted  restraining  him  from  carrying  it 
out.''  An  agreement  not  to  write  dramatic  pieces  for  any 
other  theatre  than  the  Haymarket,  was  enforced  by  injunc- 
tion.' So,  where  an  author,  having  sold  a  work,  covenant- 
ed with  the  purchaser  not  to  publish  any  other  work  to 
prejudice  the  sale  of  it.  Sir  John  Leach,  V.  C,  restrained 
the  publication  of  another  work  by  the  vendor  on  the  same 
subject,  although  such  work  was  not  a  piracy  of  the  original 
work  ;  and  Lord  Eldon  restrained  the  publishers  of  the  sec- 
ond work,  upon  proof  that  they  had  notice  of  the  covenant* 
The  sale  of  a  patent  will  be  enforced  by  compelling  the 
seller  to  convey,  and  the  buyer  to  pay  the  price.'  The  le- 
gality of  a  stipulation,  in  an  agreement  for  the  sale  of  the 
business  of  an  attorney,  to  give  to  the  party  intending  to 
carry  on  the  business,  the  benefit  of  the  name  or  recom- 
mendation of  the  party  not  engaged  in  it,  was  formerly 
questioned.'  It  is  now,  however,  well  settled,  not  only  that 
such  a  contract  is  valid,  but  that  it  may  be  specifically  en- 
forced by  injunction,  or  otherwise.'     The  sale  of  the  good- 


'  Collins  V.  Plumb,  i6  Ves.,  454.  ^  Jones  v.  North,  L.  R.  19,  Eq.  426. 

'Morris  v.  Coleman,  18  Ves.,  437.       '' Barfield  v.  Nicholson,  2  Sim.  &  Stu.,  i, 

^Cogent  V.  Gibson,  33  Beav.,  557. 

'Candler  v.  Carden,  Jac,  231  ;  Thornbury  v.  Bevill,  i  Y.  &  C.  C.  C,  584  ;  and 
see  GilfiUan  v.  Henderson,  2  CI.  &  Fin.,  i. 

'Bunn  V.  Guy,  4  East.,  190;  Whittaker  v,  Howe,  supra  ;  Aubin  v.  Holt,  2  K. 
&  J.,  66.  In  Bozon  v.  Farlow,  i  Mer.,  473,  Sir  William  Grant  doubted  the  pro- 
priety of  assisting  a  contract  to  sell  an  attorney's  business,  from  its  being  a  kind 
of  breach  of  contidence  on  the  part  of  the  attorney,  and  against  public  policy. 
These  doubts  have  often  been  entertained  by  other  judges  ;  but  such  agree- 
ments have  been  sanctioned  in  numerous  instances.  See  Nichols  v.  Stretton, 
10  Q.  B.,  346 ;  Mumford  v.  Gething,  7  C,  B.  N.  S.,  305.     In  Ward  v.  Byrne,  5 


46      CONTRACTS  WHICH   MAY  OR  MAY  NOT  BE  SUBJECTS.    §    t^S, 

will  of  a  trade,  without  any  express  provision  in  restraint 
of  carrying  on  the  same  trade  in  the  neighborhood  by  the 
person  selling,  will  not  entitle  the  court  to  restrain  the  ven- 
dor from  carrying  on  the  trade  in  the  vicinity,  unless  the 
circumstances  amount  to  actual  fraud.' 

§  36.  Enforcement  of  agreements  for  renewal. — A  cove- 
nant for  the  renewal  of  a  lease  may  be  specifically  en- 
forced,' though  it  was  formerly  held  otherwise.'  A  lease 
provided  that  upon  the  expiration  of  the  term  the  lessor 
should  either  pay  the  appraised  value  of  the  buildings,  or 
renew  the  lease  upon  such  terms  as  he  should  think  proper  ; 
and  if  the  terms  should  not  be  acceptable  to  the  lessee,  he 
might  remove  the  buildings.  The  lessor  having  offered  to 
renew  at  an  exorbitant  price,  upon  a  bill  filed  by  the  lessee, 
the  court  decreed  a  renewal  of  the  lease  at  a  reasonable 
rent.'  But  a  covenant  or  agreement  to  renew  on  the  part 
of  the  defendant  must  be  distinctly  and  clearly  shown,  and 
it  must  appear  that  the  plaintiff  has  not  been  wanting  in 
diligence.'     It  will  not  be  construed   as  amounting  to  an 

M.  &  W.,  548,  a  coal- merchant's  clerk  having  bound  himself  not  to  follow  or  be 
engaged  in  the  business  of  coal-merchant  for  the  space  of  nine  months  after  he 
should  leave  the  service  of  his  employers,  the  bond,  upon  mature  deliberation, 
was  held  void.  A  contract  not  to  manufacture  medicine  was  held  valid.  Gillis 
V.  Hall,  2  Brewst.,  342. 

'Cruttvvell  v.  Lye,  17  Ves.,  335  ;  Williams  v.  Williams,  3  Men,  157  ;  Canham 
V.  Jones,  2  V.  &  B.,  208. 

"^  Fumival  v.  Crew,  3  Atk.,  83;  Iggulden  v.  May,  9  Ves.,  325  ;  Willan  v.  Wil- 
lan,  16  lb.,  84;  Brown  v.  Tighe,  2  CI.  &  Fin.,  396  ;  Carr  v.  Ellison,  20  Wend., 
178. 

*  Somerv'ille  v.  Chapman,  i  Bro.  C.  C,  61  ;  Tritton  v.  Foote,  2  lb.,  636  ;  Rees 
v.  Dacre,  cited  (^  Ves.,  332.  Lord  Thurlow  thought  that  where  a  man  entitled 
to  an  estate  of  inheritance  agreed  to  make  leases  with  a  covenant  for  perpetual 
renewal,  each  lease  to  contain  the  same  covenant  forever,  it  could  not  be  sup- 
posed that  this  was  intended,  and,  therefore,  it  was  not  such  a  covenant  as 
would  be  executed  by  the  court.  But  Lord  Eldon  maintained  that  decided 
cases  had  established  the  rule  that  covenants  of  this  character  were  to  be  spe- 
cifically performed.     Willan  v.  Willan,  supra. 

'  W^hitlock  v.  Duffield,  2  Edw.  Ch.,  366. 

*  Where  the  lease  provided  for  renewal  on  the  dropping  of  one  life,  and  the 
application  for  renewal  was  delayed  until  two  had  expired,  it  was  held  that  the 
lessee  had  been  guilty  of  such  neglect  as  to  disentitle  him  from  specific  per- 
formance. Bayley  v.  Corp.  of  Leominster,  3  Bro.  C.  C,  529.  See  Baynham  v. 
Guy's  Hospital,  3  Ves.,  295.  Although  equity  will  relieve  in  case  of  mere  lapse 
of  time  without  misconduct  in  the  lessee,  or  where  the  lessee  has  lost  his  right 
by  the  fraud  of  the  lessor,  yet  it  will  not  do  so  when  there  has  been  wiliul  neg- 


§  36.    ENFORCEMENT  OF  AGREEMENTS  FOR  RENEWAL.     47 

agreement  for  a  perpetual  renewal  unless  the  intention  is 
free  from  all  ambiguity.'  In  the  following  cases  the  cove- 
nant was  held  to  be  for  a  perpetual  renewal  : — To  grant 
such  further  lease  as  the  lessee  should  desire  ;'  to  grant  a 
new  lease  or  leases,  and  so  to  continue  the  renewing  of 
such  lease  or  leases;'  a  lease  for  the  lives  of  A.,  B.,  and 
C,  with  ajcovenant,  on  the  death  of  any  one  of  them,  to 
grant  a  new  lease  for  the  lives  of  the  survivors,  and  a  new 
life  to  be  named,  such  lease  to  contain  all  the  covenants, 
including  "this  present  covenant,"  which  were  contained 
in  the  original  lease.*  The  proper  form  of  a  lease  by  trus- 
tees, in  pursuance  of  their  testator's  covenant  for  perpetual 
renewal,  even  where  the  covenant  stipulates  that  in  every 
future  lease  there  shall  be  inserted  the  like  covenant  for  re- 
newal, is  for  the  lease  to  recite  the  covenant,  and  to  declare 
that  the  new  lease  is  granted  in  pursuance  of  it.'  A  cove- 
nant for  a  renewed  lease,  to  contain  all  the  covenants  in 
the  original  lease,  does  not  import  the  insertion  in  the  new 
lease  of  such  a  covenant  for  renewal  as  will  make  the 
original  covenant  operate  as  a  perpetual  renewal."  A  mere 
covenant  to  renew  a  lease  at  a  specified  rent  does  not  carry 
with  it  the  covenants  of  the  old  lease.'  Where  there  is  a 
covenant  to  renew  a  lease,  the  renewed  lease  need  not  con- 
tain a  covenant  for  further  renewal,  unless  the  original 
lease  contains  an  express  covenant  for  perpetual  renewal.' 

lect  or  refusal  to  renew.  Lennon  v.  Napper,  2  Sch.  &  Lef.,  682  ;  Bateman  v. 
Murray,  cited  4  Bro.  C.  C,  417  ;  Chesterman  v.  Mann,  9  Hare,  206.  Notwith- 
standing there  has  been  some  laches  on  the  part  of  the  lessee,  if  it  is  excused 
by  fraud,  surprise,  unavoidable  accident,  or  ignorance  which  is  not  wilful,  spe- 
cific performance  will  be  enforced  when  the  lessor's  interest  has  not  been  preju- 
diced by  the  delay.  Eaton  v.  Lyon,  3  Yes.,  690.  As  to  whether  a  breach  of 
covenants  in  the  lease  will  bar  a  renewal,  see  Trant  v.  Dwyer,  2  Bli.  N.  S.,  11. 

'  Brown  v.  Tighe,  supra  ;  Baynham  v.  Guy's  Hospital,  supra. 

"^  Bridges  v.  Hitchcock,  7  East.,  245.  ^  t'urnival  v.  Crew,  stepra. 

*  Hare  v.  Burges,  4  K.  &  J.,  45. 

^  Copper  Mining  Co.  v.  Beach,  13  Beav.,  478  ;  Hodges  v.  Blagrave,  18  lb.,  404. 

^  Hyde  v.  Skinner,  2  P.  Wms.,  196  ;  Tritton  v.  Foote,  supra  ;  Russell  v.  Dar- 
win, 2  Bro.  C.  C,  639,  nole  ;  Moore  v.  Foley,  6  Yes.,  232  ;  Harnett  v.  Yielding, 
2  Sch.  &  Lef,  549. 

'  Willis  v.  Astor,  4  Edw.  Ch.,  594. 

"  Rutgers  v.  Hunter,  6  Johns.,  215  ;  Phyfe  v.  Wardell,  5  Paige  Ch.,  268. 


48      CONTRACTS  WHICH  MAY  OR  MAY  NOT  BE  SUBJECTS.    §  2>7' 

The  assignee  of  a  lease  is  entitled  to  the  specific  perform- 
ance of  a  covenant  to  renew/  A  covenant  by  a  lessor  to 
extend  a  lease,  without  naming  the  amount  of  rent,  cannot 
be  enforced  in  equity." 

§  37.  I^u/e  as  to  agreements  concerning  expectancies. — 
The  possibility  of  succession  has  been  held  at  law  not  to  be 
a  valid  subject  of  disposition,  and  such  a  disposil»ion  by  the 
heir  would  be  void  at  law,  though  the  inheritance  afterward 
fell  to  him.'  Contracts  of  this  nature  were  prohibited  by 
the  Roman  law.'  But  an  agreement  to  sell  an  estate,  if  it 
should  be  devised  to  the  vendor  by  a  person  then  living, 
was  upheld  by  the  Queen's  bench.'  In  equity  such  con- 
tracts are  regarded  as  valid,  notwithstanding  they  may  seem 
to  have  defeated  the  intentions  of  testators  or  to  have  been 
in  fraud  of  parental  authority."  In  a  very  early  case,  a  cove- 
nant to  settle  an  estate  to  which  the  covenantor  had  only 
an  expectancy  as  heir,  was  specifically  enforced  after  the 
descent  of  the  lands.'  A.  and  B.  married  two  sisters,  the 
presumptive  heiresses  of  a  very  wealthy  man  who  had 
made  and  revoked  several  wills,  but  who  ultimately  devised 
a  large  property  to  A.  and  only  a  small  one  to  B.  Before 
the  will  was  executed,  A.  and  B,  had  entered  into  an  agree- 

1  Robinson  v.  Perry,  21  Ga.,  183.        *  Robinson  v.  Kettletas,  4  Edw.  Ch.,  67. 

'  Jones  V.  Roe,  3  Term.  R.,  93  ;  vShep.  Touch.,  319;  McCracken  v.  Wright,  14 
Johns.,  193;  Davis  v.  Hayden,  9  Mass.,  504. 

^  Pothier  Tr.  Des.  Oblig.  Pt.  I,  Ch.  i.  Sec.  4. 

°  Cook  V.  Field,  15  O.  B.,  460. 

®  In  Varick  v.  Edwards,  11  Paige  Ch.,  290,  a  formal  conveyance  of  a  possibil- 
ity or  expectancy,  though  it  had  been  ruled  inoperative  at  law,  was  held  good 
in  equity.  In  jNIcWilliams  v.  Neely,  2  Serg.  &  R.,  507,  Tilghman,  Ch.  J.,  said 
that  "  If  one  enter  into  articles  to  convey  in  case  subsequent  events  should 
make  it  lawful,  there  could  be  no  doubt  that  in  equity  he  would  be  decreed  to 
convey  when  he  afterward  acquired  the  power."  And  see  to  the  same  effect 
Anderson  v.  Lewis,  i  Freem.  Miss.  Ch.,  178;  Baylor  v.  Com.,  40  Pa.  St.,  37  ; 
Power's  Appeal,  63  lb.,  443;  Mastin  v.  Marlow,  65  N.  C,  695.  CoJttra,  Lowry 
V.  Spear,  7  Bush.  Ky.,  451.  An  agreement  by  a  husband  to  convey  land  belong- 
ing to  his  wife  in  which  he  is  entitled  to  a  life  estate  by  the  curtesy,  the  wife  re- 
fusing to  execute  a  deed,  cannot  be  specifically  enforced  ;  nor  can  he  be  com- 
pelled to  convey  his  life  estate  in  the  same.  McCann  v.  Jones,  i  Rob.  Va.,  256. 
Equity  will  not  decree  specific  performance  of  an  executory  verbal  contract 
where  it  depends  on  a  future  event  which  may  never  happen.  Bradley  v.  Mor- 
gan, 2  A.  K.  Marsh,  369. 

'  Wiseman  v.  Roper,  i  Rep.  in  Ch.,  154. 


§37-  AGREEMENTS    CONCERNING    EXPECTANCIES.  49 

ment  for  the  equal  division  between  them  of  what  should 
be  left  to  each.  This  agreement  was  specifically  enforced, 
the  court  remarking  that  the  agreement  was  not  disappoint- 
ing the  intention  of  the  testator,  as  he  did  not  design  to  put 
it  out  of  either  of  the  devisees'  power  to  dispose  of  the 
estate  after  it  should  come  to  him,  but,  on  the  contrary,  by 
implication,  gave  them  such  power/  So,  likewise,  the  con- 
veyance of  a  contingency  or  possibility  on  the  death  of  a 
sister  unmarried  was  upheld.'  The  plaintiff  and  the  de- 
fendant, the  celebrated  John  Home  Tooke,  entered  into  a 
parpl  agreement  to  divide  what  they  should  obtain  from  a 
testator,  in  pursuance  of  which  the  plaintiff  had  given  to 
the  defendant  Tooke  a  note  for  four  thousand  pounds, 
which  the  latter  had  indorsed  to  the  other  defendant,  Sir 
Francis  Burdett,  for  value.  It  was  held  that  the  plaintiff 
had  no  equity  to  follow  the  note  into  the  hands  of  the  pur- 
chaser. It  is  said  that  the  court  expressed  doubts  whether 
the  transaction  between  the  plaintiff  and  defendant  Tooke 
was  not  a  fraud  on  the  testator,  and  whether  the  court 
would  at  any  rate  assist  in  specifically  enforcing  such  an 
agreement.  But  "  the  case  has  usually  been  treated  as  an 
authority  for  the  validity  of  contracts  relating  to  expectan- 
cies."' Two  sons  entered  into  an  agreement  for  an  equal 
division  of  what  they  might  derive  from  their  father,  either 
during  his  life  or  after  his  decease,  by  will  or  otherwise. 
It  was  urged  that  this  was  a  contrivance  on  the  part  of  the 
sons  to  protect  themselves  from  the  consequences  of  mis- 
behavior and  in  fraud  of  parental  authority.  The  agree- 
ment was,  however,  specifically  enforced  ;  the  court  con- 
sidering that  as  the  testator  had  the  power  to  give  property 
to  his  sons  without  the  power  of  alienation,  which  he  did 
not  choose  to  do,  he  had  allowed  it  to  become  liable  to  all 
of  their  antecedent   contracts.'     So,  specific  performance 

'  Beckley  v.  Newland,  2  P.  Wms.,  182 ;  S.  P.  Hobson  v.  Trevor,  lb.,  191  ;  but 
see  Mercier  v.  Mercier,  50  Ga.,  546. 

^  Wright  V.  Wright,  i  Ves.,  Sen.  409.     Per  Lord  Hardvvicke. 

'  Harwood  v.  Tooke,  2  Sim.,  192  ;  Fry  on  Specific  Perform.,  398,  399. 

*  Wethered  v.  Wethered,  2  Sim.,  183  ;  see  Houghton  v.  Lees,  i  Jur.  N.  S.,  862. 

4 


50      CONTRACTS  WHICH   MAY  OR  MAY  NOT  BE  SUBJECTS.    §  39. 

was  decreed  of  a  covenant  in  the  grant  of  an  annuity  for 
the  covenantor's  Hfe  to  charge  the  annuity  on  whatever  he 
should  become  entitled  to,  by  will  or  otherwise,  in  the 
event  of  his  wife's  decease,  although  such  covenant  related 
to  a  mere  expectancy.'  And  agreements  concerning  the 
costs  of  proceedings  in  lunacy  or  the  ultimate  division  of  a 
lunatic's  property  have  been  upheld." 

§  38.  Caution  exei^cised  as  to  agreement  in  relation  to 
expectancy. — But  contracts  concerning  expectancies  will  be 
scrutinized  by  the  court,  and  only  enforced  when  the  cir- 
cumstances are  such  as  to  render  the  interference  of  equity 
obviously  proper.  Two  young  officers  in  the  British  army 
signed  and  exchanged  a  writing  by  which  each  charged  his 
estate  with  one  thousand  pounds  in  favor  of  the  other  in 
case  the  other  should  survive  him,  the  consideration  being 
the  mutual  promise.  A  long  time  afterward  they  corre- 
sponded with  a  view  to  rescind  the  agreement,  which,  how- 
ever, was  never  done.  It  was  held,  that  considering  the 
nature  of  the  transaction,  the  age  and  condition  of  the  par- 
ties, and  their  subsequent  correspondence,  there  was  no 
equitable  claim  which  ought  to  be  enforced.  But  the 
court  retained  the  bill  a  year,  with  liberty  to  the  plaintiff 
to  bring  an  action  at  law.' 

§  39.  Agreement  for  expectancy  terminates  at  death  of 
party. — A  contract  in  relation  to  an  expectancy  can  only  be 
enforced  against  the  party  in  his  life-time,  such  an  agree- 
ment being  purely  personal.  In  an  early  case  the  court 
said  :  "The  surrenderor  not  having  any  title  whatever  to  the 
premises  at  the  time  of  the  surrender,  his  agreement  would 
not  raise  a  lien  upon  the  land  ;  and,  although  the  present 
plaintiffs  might  have  been  relieved  if  they  had  filed  their 
bill  against  him  in  his  life-time — that  is,  after  the  title  had 
accrued,  yet  it  does  not  follow  that  therefore  they  can  be 
relieved  against  his  heirs.     Neither  the  land  itself  nor  the 

1  Lyde  v.  Mynn,  I  M.  &  K.,  683.  "  Persse  v.  Persse,  7  CI.  and  Fin.,  279. 

=  Rvan  V.  Daniel  i  Y.  &  C.  C.  C.  60. 


§§  4.0,  4T.     CONTRACT  TO  DISPOSE  OF  PROPERTY  BY  \VILL.     5 1 

conscience  of  the  present  defendants  is  bound  by  the  act 
of  the  surrenderor.'"  So,  it  has  been  held  that  though 
such  a  contract  might  create  a  personal  Habihty,  yet  that 
there  was  no  such  interest  as  would  pass  by  a  bargain  and 
sale  to  assignees  in  bankruptcy.' 

§  40.  Provision  by  parents  for  children. — Defective  con- 
veyances by  parents  as  a  provision  for  children  have  often 
been  aided  in  equity,  and  the  principle  is  applicable  to  broth- 
ers and  sisters.  Where  a  father  agreed  not  to  devise  his 
real  estate,  but  permit  it  to  descend  to  his  eldest  son  and 
heir  at  law,  upon  the  express  trust  that  in  case  the  son 
should  succeed  as  devisee  to  the  property  of  a  third  person, 
he  would  convey  the  estate,  which  should  thus  descend  to 
him  from  his  father,  to  his  younger  brothers  ;  and  the  son, 
in  pursuance  of  this  agreement,  executed  a  deed  to  his 
brothers  which  was  defective  ;  it  was  decreed  that  he  should 
make  a  good  and  sufficient  conveyance  to  them."  Where  a 
parent,  for  the  purpose  of  securing  a  provision  for  his  two 
children,  executed  deeds  of  part  of  his  estate  to  them,  but 
retained  the  deeds  in  his  possession,  directing  his  wife  to 
lodge  them  with  the  town  clerk,  for  record,  after  his  death, 
w^hich  was  done,  there  being  no  claim  of  a  creditor  or  pur- 
chaser, it  was  held  such  an  agreement  as  the  court  would 
enforce/ 

§  41.  Contract  to  dispose  of  property  by  zvill. — A  per- 
son may  make  a  valid  agreement  binding  himself  to  dispose 

^  Morse  v.  Faulkner,  3  Swanst.,  429  note. 

^  Careleton  v.  Leighton,  3  Men,  667. 

'  Browne  v.  Browne,  i  Har.  and  Johns.,  430. 

*  Jones  V.  Jones,  6  Conn.,  iii.  As  the  deeds  were  retained  by  the  grantor  in 
his  own  possession,  the  giving  them  into  the  custody  of  the  town  clerk  for 
record  was  not  a  delivery  of  them.  It  would  have  been  different  if  the  deeds 
had  been  delivered  to  the  wife  before  the  grantor's  death,  as  in  that  case  the  de- 
livery of  them  to  the  wife  of  the  grantor,  to  take  effect  upon  his  decease,  would, 
by  legal  operation,  have  been  a  delivery  to  the  grantees  themselves.  Belden  v. 
Carter,  4  Day,  66.  But  a  voluntary  conveyance  made  with  a  view  to  a  family 
settlement,  if  there  be  no  fraud  on  a  third  person,  is  binding  in  equity.  Claver- 
ing  V.  Clavering,  2  Vern.,  473;  Broughton  v.  Broughton,  i  Atk.,  625  ;  Johnson 
v.  Smith,  I  Ves.,  314;  Bunn  v.  Winthrop,  i  Johns.  Ch.,  329;  Soverbye  v.  Arden, 
lb.,  140.  Accordingly,  in  Jones  v.  Jones,  supra,  as  the  transaction  was  in  favor 
of  the  children  of  deceased,  and  intended  as  a  provision  by  way  of  settlement, 
it  was  upheld.     See  Post,  §§  285,  286. 


52      CONTRACTS  WHICH  MAY  OR  MAY  NOT  BE  SUBJECTS.    §  4I. 

of  his  property  in  a  particular  way  by  last  will  and  testa- 
ment ;  and  a  court  of  equity  will  enforce  such  an  agree- 
ment by  compelling  the  heir  at  law  to  convey  the  property 
in  accordance  with  the  terms  of  the  contract ;'  but  such  a 
contract,  especially  when  it  is  attempted  to  be  established 
by  parol,  is  regarded  with  suspicion,  and  not  sustained  ex- 
cepting upon  the  strongest  evidence  that  it  was  founded 
upon  a  valuable  consideration,  and  deliberately  entered  in- 
to by  the  decedent'  While,  in  some  of  the  cases  we  have 
cited  below,  the  courts  refused  to  decree  the  specific  per- 
formance of  such  an  agreement,  they  all  recognized  the 
power  of  individuals  to  make  binding  contracts  of  this  nat- 
ure, and  relief  was  denied  on  other  grounds.  In  the  case 
of  Lord  Walpole  v.  Lord  Orford,'  there  was  an  agree- 
ment to  make  mutual  wills,  and  although  its  execution  was 
not  decreed  because  of  its  uncertainty  and  vagueness,  no 
doubt  was  expressed  as  to  the  power  of  courts  of  equity  to 
enforce  such  an  agreement,  nor  of  their  inclination  to  do 
so,  where  it  was  sufficiently  specific,  and  upon  a  proper 
consideration.  An  heir  at  law  claiming  a  right  to  certain 
land,  went  to  the  tenant  in  possession,  who  likewise  claimed 
an  interest  in  the  fee,  and  threatening  to  evict  her  at  law, 
she  promised  that  if  she  died  without  issue,  she  would  leave 
him  either  a  specified  sum  of  money,  or  the  land.  Previ- 
ous to  her  death  she  devised  the  land  to  her  second  hus- 
band, who  never  had  any  notice  of  the  agreement.     A  bill 

'  Logan  V.  Weinholt,  7  Bligh,  N.  S.  i  ;  Rives  v.  Rives,  3  Dessaus  Eq.,  195  ; 
Izard  V.  Izard,  lb.,  116,  note\  McClure  v..McClure,  i  Pa.  St.,  378;  Brinker  v. 
Brinker,  lb.,  53  ;  Logan  v.  McGinnis,  12  Pa.  St.,  32  ;  Mundorff  v.  Kilbourn.  4 
Md.,  459  ;  Wright  v.  Tinsley,  30  Mo.,  389  ;  Gupton  v^  Gupton,  47  lb.,  37  ;  Sutton 
V.  Hayden,  62  lb.,  loi  ;  Johnson  v.  Hubbell,  10  N.J.  Eq.,  2  Stock,  332  ;  Frisby  v. 
Parkhurst,  29  Md.,  58  ;  and  see  Lord  Walpole  v.  Lord  Orford,  3  Yes.,  402  ;  S.  C.  7, 
D.  and  E.  138;  Lewis  v.  Madocks,  8  Ves.,  150;  Fortescue  v.  Hennah,  19  lb., 
71  ;  Podmore  v.  Gunning,  7  Sim.,  644;  Moorhouse  v.  Colvin,  9  Eng.  L.  .'and 
Eq.,  136;  Harder  V.  Harder,  2  Sandf.  Ch.,  17;  Carlisle  v.  Fleming,  i  Harring, 
421.     Contra,  Stafford  v.  Bartholomew,  2  Carter,  153. 

'' Shakspeare  v.  Markham,  10  Hun.  311,  referring  to  OgiK'ie  v.  Ogilvie,  i 
Bradf.,  356;  Bowen  v.  Bowen,  2  lb.,  336;  Williams  v.  Hutchinson,  3  N.  Y.,  312  ; 
Robinson  v.  Raynor,  28  lb.,  494 ;  Parsell  v.  Stryker,  41  lb.,  480  ;  Lisk  v.  Sher- 
man, 25  Barb.,  433  ;  Cox  v.  Cox,  26  Gratt.,  305  ;  Sprinkle  v.  Hayvvorth,  lb.,  384. 

^  Supra. 


§42. 


AGREEMENTS    FOR    SEPARATION.  53 


was  filed  by  the  heir  at  law  to  have  the  agreement  enforced, 
and  it  was  decreed  against  the  husband/ 

§  42.  Agi^eements  for  separation. — A  court  of  equity  has 
jurisdiction  to  enforce  the  specific  performance  of  an  agree- 
ment for  separation  of  husband  and  wife,  by  the  execution 
of  proper  deeds  for  that  purpose  ;'  or,  if  the  deed  has  been 
executed,  to  enforce  its  stipulations  ;'  and  to  compel,  by  in- 

^  Goilraere  v.  Battison,  i  Vern.,  48. 

"^  Wilson  V.  Wilson,  i  House  of  Lds.,  538  ;  Affg-.  S.  C.  14,  Sim.  405  ;  5  House 
of  Lds.,  40;  23  L.  J.  Ch.,  697  ;  Fletcher  v.  Fletcher,  2  Cox,  99;  Thomas  v. 
Brown,  10  Ohio  St.,  250;  Hitner's  Appeal,  4  P.  F.  Smith,  114;  Barron  v.  Bar- 
ron, 24  Vt.,  375  ;  Dutton  v.  Dutton,  30  Ind.,  455.  Contra,  Mansfield  v.  Mans- 
field, Wright,  284  ;  Simpson  v.  Simpson,  4  Dana,  140 ;  McCrocklin  v.  McCrock- 
lin,  2  B.  Mon.,  370;  McKennan  v.  Phillips,  6  Whart.,  571  ;  Hutton  v.  Duey,  3 
Pa.  St.,  100;  Champlin  v.  Champlin,  i  Hoffm.  Ch.,  55;  Rogers  v.  Rogers,  4 
Paige  Ch.,  518  ;  Reed  v,  Beazley,  i  Blackf.,  97.  It  has  been  maintained  by  em- 
inent judges,  that  deeds  of  separation  between  husband  and  wife,  through  the 
intervention  of  trustees,  ought  not  to  be  upheld  either  as  to  the  separation,  or  as 
to  a  stipulation  for  a  separate  maintenance.  Evans  v.  Evans,  i  Hagg.,  Consist. 
R.,  36,  per  Lord  Stowell.  "  Lord  Eldon  intimated  that  a  settlement  by  way  of 
a  separate  maintenance  on  a  voluntary  separation  of  husband  and  wife,  was 
against  the  policy  of  the  law,  and  void  ;  and  he  made  no  distinction  between 
settlements  resting  on  articles,  and  a  final  complete  settlement  by  deed  ;  or  be- 
tween the  cases  where  a  trustee  indemnified  the  husband  against  the  wife's  debts, 
and  where  there  was  no  such  indemnity.  The  ground  of  his  opinion  was,  that 
such  settlements,  creating  a  separate  maintenance  by  voluntary  agreement  be- 
tween husband  and  wife,  were  in  their  consequences  destructive  to  the  indis- 
soluble nature  and  sanctity  of  the  marriage  contract."  2  Kent's  Com.,  p.  175, 
referring  to  St.  John  v.  St.  John,  11  Ves.,  530,  and  see  the  opinion  of  Lord  El- 
don, in  Westmeath  v.  Salisbury,  5  Bligh,  N.  S.,  339.  But  the  doctrine  is  now 
well  settled  in  England  ;  and  it  is  regarded  with  more  favor  than  formerly  in  the 
United  States.  The  agreement  must,  however,  be  for  immediate,  and  not  for 
future,  separation,  the  latter  being  void.  Durant  v.  Titley,  7  Price,  577  ;  Hind- 
ley  V.  Westmeath,  6  B.  and  Cresw.,  200.  But  the  following  clause  in  a  deed 
was  held  to  be  valid  and  binding  :  "  If  my  wife  and  myself  should  ever  part,  or 
be  separated,  or  divorced,  I  will  account  to  her  and  her  heirs  for  all  such  ad- 
vances as  may  be  made  to  her  by  her  father ;  and,  in  the  meantime,  they  are  to 
be  kept  to  her  separate  use  and  control."  Waring  v.  Waring,  10  B.  Men.,  331. 
Articles  of  separation,  to  which  a  trustee  was  a  party,  were  executed  by  a  hus- 
band and  wife,  the  husband  covenanting  that  the  wife  might  live  separately,  and 
that  he  would  not  disturb  her ;  and  it  was  agreed  that  the  wife's  real  and  per- 
sonal property  should  be  held  in  trust  for  her  maintenance,  that  she  would  not 
call  upon  her  husband  for  assistance,  nor  contract  debts  on  his  account,  and  that 
if  she  did  not  dispose  of  her  property  by  will,  it  might  go  to  her  heirs.  Held 
binding  on  the  husband.  Heyer  v.  Burgher,  i  Hoffm.  Ch.,  i.  When  the  wife 
returns  to  her  husband  for  the  purpose  of  resuming  her  duties  and  privileges  as 
a  married  woman,  and  is  received  by  him  as  his  wife,  their  previous  agreement 
to  separate  maintenance  falls  with  the  contract  out  of  which  it  arose,  and  upon 
which  it  was  founded.  Shelthar  v.  Gregory,  2  Wend.,  422  ;  Pidgin  v.  Cram,  8 
N.  H.,  350. 

^  Vansittart  v.  Vansittart,  2  De  G.  and  J.,  255  ;  Stapilton  v.  Stapilton,  2  Lead. 
Gas.  in  Eq.,  853. 


54      CONTRACTS  WHICH  MAY  OR  MAY  NOT  BE  SUBJECTS.    §  42. 

junction,  the  husband  to  forbear  from  molesting  his  wife  ; ' 
or  to  restrain  him  from  suing  for  a  restoration  of  conjugal 
rights,  in  violation  of  a  covenant  inserted  in  a  deed  of  sep- 
aration executed  under  a  decree  of  the  court ;'  but  not  to 
enforce  a  simple  agreement  between  them  to  live  separately  ; 
a  husband  and  wife  being  incapable  of  contracting  without 
the  intervention  of  some  third  person.'  Such  an  agreement 
must  have  been  founded  on  a  good  consideration.  The 
staying  of  a  suit  in  the  ecclesiastical  court  for  nullity  of 
marriage  on  the  ground  of  impotency  of  the  husband,  was 
deemed  a  sufficient  consideration  against  him.'  The  same 
was  held  of  an  agreement  by  the  wife  to  accept  mainte- 
nance from  the  husband,  instead  of  bringing  a  suit  for  a 
divorce  a  mensa  et  thoro ;"  also,  of  an  engagement  by  the 
trustees  to  indemnify  the  husband  against  the  wife's  debts  ;' 
or  to  do  so,  provided  an  annuity,  which  w^as  to  be  paid,  w^as 
secured  ;'  also  of  a  covenant,  by  a  third  person,  to  pay  the 
husband's  debts."  A  consideration  w^hich  is  good  against 
the  creditors  of  the  husband  will,  of  course,  be  good  against 

1  Sanders  v.  Rodway,  22  L.  J.  Ch.,  230 ;  16  Beav.,  267  ;  Flower  v.  Flower,  20 
W.  R.,  231. 

*  Hunt  V.  Hunt,  10  W.  R.,  215. 

^  Hope  V.  Hope,  26  L.  J.  Ch.,  417 ;  Wilkes  v.  Wilkes,  2  Dick  ,  791  ;  Dibble  v. 
Hutton,  I  Day,  221.  The  intervention  of  a  trustee  for  the  wife  has  generally 
been  deemed  essential  in  order  to  give  validity  to  provisions  for  her  separate 
maintenance.  Legard  v.  Johnson,  3  Ves.,  359  ;  St.  John  v.  St.  John,  11  lb.,  526  ; 
Watkins  v.  Watkins,  7  Yerg.,  283 ;  Simpson  v.  Simpson,  4  Dana,  140 ;  Tourney 
V.  Sinclair,  3  How.  Miss.,  324 ;  Bettle  v.  Wilson,  14  Ohio,  257  ;  Carson  v.  Mur- 
ray, 3  Paige  Ch.,  483 ;  Carter  v.  Carter,  14  Sm.  and  Marsh,  59.  But  the  pro- 
visions of  a  deed  of  separation  have  been  enforced  without  a  trustee.  More  v. 
Ellis,  Bunb.,  205  ;  Guth  v.  Guth,  3  Bro.  C.  C,  614 ;  Frampton  v.  Frampton,  4 
Beav.,  294;  Picket  v.  Johns,  i  Dev.  Eq.,  123;  Hutton  v.  Duey,  3  Pa.  St.,  100; 
Barron  v.  Barron,  24  Vt.,  375.  "It  is  unquestionably  more  convenient  and 
proper,  in  cases  of  separation,  that  trustees  should  be  appointed  by  whom  the 
provisions  for  the  wife's  separate  maintenance  may  be  enforced."  Hill  on  Trus- 
tees, p.  426. 

^  Wilson  v.  Wilson,  supra.  ^  Hobbs  v.  Hull,  i  Cox,  445. 

®  Stephens  v.  Olive,  2  Bro.  C.  C,  90 ;  Compton  v.  Collinson,  lb.,  38  ;  Worrall 
v.  Jacob,  3  Mer.,  256;  Westmeath  v.  Westmeath,  Jac,  126  ;  Elsworthy  v.  Bird, 
2.  Sim.  and  Stu.,  381.  The  absence  of  such  a  covenant  on  the  part  of  the  trus- 
tees would  not  invalidate  the  deed  as  against  the  husband,  though  it  would  not 
be  binding  on  his  creditors.     Fitzer  v.  Fitzer,  2  Atk.,  511. 

'  Wellesley  v.  Wellesley,  10  Sim.,  256. 

^  Wilson  V.  Wilson,  supra  ;  Jones  v.  Waite,  5  Bing.  N.  C,  341. 


§  43-  ENFORCEMENT    OF    COMPROMISE.  55 

him.  Adultery  by  the  wife  will  not  prevent  the  court  from 
enforcing  articles  of  separation  ;'  but  otherwise,  when  there 
is  an  agreement  before  marriage  for  the  payment  out  of  the 
husband's  estate  of  an  annuity  to  the  wife  in  the  event  of  a 
separation  taking  place  between  them  ;  as  that  would  fur- 
nish an  inducement  to  the  wife  "  to  be  guilty  of  the  most 
atrocious  conduct  in  order  to  entitle  herself  to  the  pro- 
vision." " 

§  43.  Enforcement  of  compromise. — A  compromise  will 
be  enforced  the  same  as  any  other  agreement,  and  the 
court  will  not  inquire  into  the  validity  of  the  claim  on 
which  it  is  founded  ;  the  compromise  of  a  claim  in  good 
faith,  to  which  a  person  believes  he  is  liable,  and  of  the  nat- 
ure of  which  he  is  aware,  being  a  good  consideration  for 
the  agreement.'  But  the  compromise,  to  be  upheld,  must 
relate  to  a  doubtful  claim  ;  for  if  the  claim  is  undisputed, 
payment  of  a  part  will  not  discharge  the  rest  for  want  of 
consideration."  Where,  however,  "  parties,  whose  rights 
are  questionable,  have  equal  knowledge  of  facts,  and  equal 
means  of  ascertaining  what  their  rights  really  are,  and  they 
fairly  endeavor  to  settle  their  respective  claims  among  them- 


^  Seagrave  v.  Seagrave,  13  Yes.,  439;  Buchanan  v.  Buchanan,  i  B.  and  B., 
203  ;  Blount  v.  Winter,  3  P.  Wms.,  276. 

-  Cocksedge  v.  Cocksedge,  14  Sim.,  244.     But  see  S.  C.  5,  Hare  397. 

'  Attvvood  V. 1  Russ.,353 ;  Bailey  v.  Wilson,  i  Dtv.  &  Batt.  Eq.,  182  ;  Moore 

V.  Fitzwater,  2  Rand.,  442  ;  Mclntire  v.  Johnson,  4  Bibb.,  48  ;  Zane  v.  Zane, 
6  Munf.,  406;  Chamberlain  v.  McClurg,  8  Watts  &  Serg.,  31.  ''If  com- 
promises are  otherwise  unobjectionable,  they  will  be  binding,  and  the  right 
will  not  prevail  against  the  agreement  of  the  parties ;  for  the  right  must  always 
be  on  one  side  or  the  other,  and  there  would  be  an  end  of  compromises  if  they 
might  be  overthrown  upon  any  subsequent  ascertainment  of  rights  contrary 
thereto.  If,  therefore,  a  compromise  of  a  doubtful  right  is  fairly  made  between 
parties,  its  validity  cannot  depend  upon  any  future  adjudication  of  that  right. 
There  must,  however,  be  an  honest  disclosure,  by  each  party  to  the  other,  of 
all  such  material  facts  known  to  him  relative  to  the  rights  and  title  of  either  as 
are  calculated  to  influence  the  judgment  in  the  adoption  of  the  compromise  ;  and 
any  advantage  taken  by  either  party  of  the  other's  known  ignorance  of  such 
facts,  will  render  the  same  void  in  equity,  and  liable  to  be  set  aside."  Story's 
Eq.  Juris.,  Sees.  131,  132. 

*  Fitch  v.  Sutton,  5  East.,  230 ;  Thomas  v.  Heathorn,  2  B.  &  Cr.,  477  ;  Down 
V.  Hatcher,  10  Ad.  &  El.,  121  ;  Btanchard  v.  Noyes,  3  N.  H.,  518;  Seymour  v. 
Minturn,  17  Johns.,  169;  Wheeler  v.  Wheeler,  11  Vt.,  60;  Geiser  v.  Kershner, 
4  Gill  &  Johns.,  305  ;  State  v.  Payson,  37  Me.,  361. 


56      CONTRACTS  WHICH  MAY  OR  MAY  NOT  BE  SUBJECTS.    §  43. 

selves,  every  court  must  feel  disposed  to  support  the  con- 
clusions or  agreements  to  which  they  may  fairly  come  at 
the  time,  and  that,  notwithstanding  the  discovery  of  some 
common  error;'"  or  notwn'thstanding  the  subsequent  decis- 
ion of  a  court  shows  that  the  rights  of  the  parties  were 
different  from  what  they  supposed."  Where  two  persons 
agreed  upon  a  boundary  line  between  their  lands  by  a  com- 
promise in  writing,  and  there  was  no  appearance  of  unfair- 
ness, fraud,  or  mistake,  specific  performance  was  decreed." 
And  where  a  creditor  entered  into  an  agreement  with  a 
third  person,  for  a  valuable  consideration,  to  compromise 
the  claim  of  the  former  against  his  debtor,  it  was  held  such 
an  agreement  as  would  be  specifically  enforced."  The 
court  strongly  leans  in  favor  of  family  arrangements  which 
are  in  the  nature  of  a  compromise,^  and  which  neither  mis- 
take nor  want  of  mutuality  will  prevent  from  being  con- 
clusive between  the  parties.  **  Where  family  arrange- 
ments," said  Lord  Eldon,  "  have  been  fairly  entered  into, 
without  concealment  or  imposition  upon  either  side,  with  no 
suppression  of  what  is  true,  or  suggestion  of  what  is  false, 
then,  although  the  parties  may  have  greatly  misunderstood 
their  situation  and  mistaken  their  rights,  a  court  of  equity 
will  not  disturb  the  quiet  which  is  the  consequence  of  that 
agreement.""     A  father  and  son  compromised  a  contention 

'  Lord  Langdale  in  Pickering  v.  Pickering,  2  Beav.,  31.  And  see  to  the  same 
effect  the  remarks  of  Lord  Alvanley  in  Gibbons  v.  Gaunt,  4  Ves.,  849. 

-  Lawton  v.  Campion,  18  Beav.,  87.       '  Fugatt  v.  Robinson,  18  B.  Mon.,  680. 

^  Phillips  V.  Berger,  8  Barb.,  527. 

^  Cory  V.  Coiy,  i  Ves.  Sen.,  19;  Stockley  v.  Stockley,  i  V.  &  B.,  30  ;  Clifton 
V.  Cockburn,  3  M.  &  K.,  76. 

^  Gordon  v.  Gordon,  3  Swanst.,  400.  "  Whenever  doubts  and  disputes  have 
arisen  with  regard  to  the  rights  of  different  members  of  the  same  family,  and 
fair  compromises  have  been  entered  into  to  preserve  the  harmony  and  affection, 
or  to  save  the  honor  of  the  family,  those  arrangements  have  been  sustained  by 
courts  of  equity,  albeit  perhaps  resting  on  grounds  which  would  not  have  been 
satisfactory'  if  the  transaction  had  occurred  between  mere  strangers."  Sugden, 
Chancellor,  in  Stapleton  v.  Stapleton,  2  Wharton  &  Tucker's  Eq.  Cas.,  7ioie.  See 
Bailey  v.  Wilson,  i  Dev.  &  Batt.,  182  ;  Price  v.  Winston,  4  Munf.,  63;  Watkins 
v.  Watkins,  24  Ga.,  402  ;  Fulton  v.  Smith,  27  lb.,  413;  Smith  v.  Smith,  36  lb., 
184  :  Pullen  v.  Ready,  2  Ark.,  587.  But  the  law  is  jealous  of  whatever  tends  to 
the  destruction  of  family  confidence,  or  to  induce  the  disobedience  of  parental 
authority,  and  it  will  not  uphold  an  agreement  which  has  that  effect.     In  IMer- 


§  43-  ENFORCEMENT    OF    COMPROMISE.  57 

as  to  the  title  to  a  farm  by  an  agreement  under  seal  bind- 
ing the  father  to  pay  the  son  twenty-five  hundred  dollars — 
five  hundred  in  thirty  days,  one  thousand  out  of  the  first 
payment  made  on  the  sale  of  the  farm,  and  one  thousand 
out  of  the  second  payment.  The  father  paid  the  first  in- 
stalment, but  failed  to  pay  the  others,  or  to  sell  the  land. 
Held  to  create  a  charge  upon  the  land,  and  to  entitle  the 
son  to  a  decree  for  specific  performance.  In  such  case  the 
court  might  properly  appoint  a  trustee  to  make  the  sale. 
The  unpaid  money  became  due  after  a  reasonable  lapse  of 
time  for  the  father  to  sell  the  land  and  realize  from  its  sale.' 
An  agreement  in  settlement  of  a  family  dispute  will  not 
be  specifically  enforced,  unless  the  arrangement  is  final ; 
nor  if  it  is  hard  and  unconscionable,  or  unequal,  or  if  a 
strict  legal  construction  of  its  terms  would  give  the  plain- 
tiff undue  advantage.'  When  an  agreement  for  the  com- 
promise of  family  disputes  is  not  complete  in  itself,  but  a 
mere  plan  looking  to  a  future  adjustment  of  details,  and 
consequently  so  far  from  settling  the  family  difficulties  it 
may  be  the  germ  of  future  litigation,  specific  performance 
will  of  course  not  be  decreed.'  Where  a  compromise  was 
entered  into  through  the  mistake  of  counsel,  a  bill  for  spe- 
cific performance  was  dismissed,  but  without  costs.*  The 
compromise  of  a  suit  may  be  enforced  by  motion  or  peti- 
tion in  the  original  suit  to  stay  proceedings,  when  the 
prompt  interference  of  the  court  is  necessary  to  carry  the 
agreement  into  effect  ;  as  where  one  of  the  parties  is  liable 
to  immediate  attachment.  But  if  the  agreement  for  a 
compromise  goes  beyond  the  ordinary  range  of  the  court 
in  the  existing  suit,  includes  a  number  of  details,  money  to 
be  paid,  and  acts  to  be  performed,  or  the  equity  sought  to 


cier  V.  Mercier,  50  Ga.,  546,  the  contract  was  held  incapable  of  being  enforced, 
for  the  reason  that  its  declared  object  was  the  repudiation  of  a  parent's  advice 
and  authority,  so  that  both  might  be  set  aside  during  his  life,  with  a  guaranty 
of  impunity  to  the  son  for  any  disobedience  or  want  of  filial  loyalty  on  his  part. 

'  Johnson  v.  Johnson,  40  Md.,  189.  ^  Wistar's  Appeal,  80  Pa.  St.,  484. 

'  Ibid.  *  Swinfen  v.  Swinfen,  27  L.  J.  Ch.,  35. 


58      CONTRACTS  WHICH  MAY  OR  MAY  NOT  BE  SUBJECTS.    §  44. 

be  enfbrced  is  different  from  that  on  the  record,  or  the 
agreement  is  denied,  or  the  rio^ht  to  have  it  enforced  in 
the  suit  disputed,  a  fresh  suit  should  be  brought  for  specific 
performance/ 

§  44.  Arbitration  not  compelled. — An  agreement  to  refer 
matters  to  arbitration  will  not  be  specifically  enforced  ;  nor 
will  the  court  require  arbitrators  to  make  an  award.'  Where 
the  parties  to  a  contract  for  the  sale  of  land,  stipulated  that 
if  they  could  not  agree  as  to  the  price,  to  leave  it  to  two  dis- 
interested men  to  fix  the  same,  and  the  price  was  to  be  paid 
within  a  year  following,  but  no  price  had  been  fixed  some 
ten  years  afterward,  it  was  held  that  a  specific  performance 
could  not  be  decreed.'  Specific  performance  cannot  be  en- 
forced of  an  agreement  that  property  shall  be  sold  at  a  price 
to  be  determined  by  valuers,  if  no  valuation  be  made  ;  nor 
the  appointment  of  valuers  be  decreed,  or  any  other  mode 
of  determining  the  price  be  substituted  by  the  court,'  un- 
less there  has  been  such  acquiescence  in,  or  part  perform- 
ance of,  the  contract,  as  would  render  it  inequitable  not  to 
enforce  its  execution,  in  which  case  the  court  will  deter- 


'  Pryer  v.  Tribble,  L.  R.  10,  Ch.  534 ;  Forsyth  v.  Manton,  5  Mad.,  78  ;  Wood 
V.  Rowe,  2  Bligh,  595,  617;  Askew  v.  Milling-ton,  9  Hare,  65;  Richardson  v. 
Eyton,  2  De  G.  M.  &  C,  79.     See  Tibbutt  v.  Potter,  4  Hare,  164. 

^  Mitford  PL  264  ;  Crawshay  v.  Collins,  i  Swanst.,  40 ;  Street  v.  Rigby,  6  Ves., 
815 ;  Gourlay  v.  Duke  of  Somerset,  19  lb.,  429;  Agar  v.  Macklew,  2  Sim.  and 
Stu.,  418;  Gervaise  v.  Edwards,  2  Dr.  and  W.,  80;  Conner  v.  Drake,  i  Ohio 
St.,  166;  Toby  V.  County  of  Bristol,  3  Story,  800;  Noyes  v.  Marsh,  123  Mass., 
286.  The  reason  given  for  this  rule  is,  that  courts  of  equity  will  not  aid  parties 
in  ousting  by  their  agreements  the  jurisdiction  of  the  ordinary  tribunals  of  the 
country  established  for  the  trial  of  causes.  See  Mitchell  v.  Harris,  2  Ves.,  131. 
"The  regular  administration  of  justice  might  be  greatly  impeded  or  interfered 
with  by  such  stipulations,  if  they  were  specifically  enforced.  And  at  all  events, 
courts  of  justice  are  presumed  to  be  better  capable  of  administering  and  enforc- 
ing the  real  rights  of  the  parties,  than  any  mere  private  arbitrators,  as  well  from 
their  superior  knowledge,  as  their  superior  means  of  sifting  the  controversy  to 
the  very  bottom."  Story's  Eq.  Juris.,  Sec.  670.  Moreover,  the  exercise  of  such 
a  jurisdiction  would  conflict  with  the  policy  of  the  common  law,  which  permits 
parties,  in  all  cases,  to  revoke  a  submission  to  arbitration,  even  though  the  sub- 
mission has  been  made  a  rule  of  court.  Gourlay  v.  Duke  of  Somerset,  19  Ves., 
431  ;  Agar  v.  Macklew,  2  Sim.  and  Stu.,  418  ;  Milnes  v.  Gery,  14  Ves.,  400 ;  Grea- 
son  V.  Ketletas,  17  N.  Y.,  491. 

'  Griffith  v.  Frederick  County  Bank,  6  Gill  and  J.,  424. 

■*  Blundell  v.  Brettargh,  17  Ves.,  232;  Vickers  v.  Vickers,  L.  R.  4,  Eq.  529; 
Firth  v.  Midland  R.R.,  L.  R.  20,  Eq.  100. 


§  44-  ARBITRATION    NOT    COMPELLED.  59 

mine  what  is  a  fair  value.'  Parties  obtained  a  lease  for  ten 
years,  with  the  right  to  renewal  from  time  to  time,  for  five 
hundred  years,  the  amount  of  rent  to  be  ascertained  by  two 
assessors,  one  to  be  appointed  by  the  lessors,  and  the  other 
by  the  lessees.  The  lessees,  on  the  faith  of  the  covenant  to 
renew,  made  improvements  on  the  premises  of  very  great 
value,  but  at  the  end  of  ten  years  the  lessors  refused  to  do 
anything  toward  renewal,  and  brought  an  action  at  law  for 
the  use  and  occupation  of  the  property.  The  lessees  there- 
upon filed  a  bill  in  equity  to  restrain  the  action  until  the 
lessors  appointed  an  assessor,  and  an  order  was  entered  to 
that  effect.^  Where  an  agreement  for  the  sale  of  land  pro- 
vided that  the  price  should  be  ascertained  by  certain  per- 
sons, and  the  vendor  refused  to  allow  them  to  go  on  to  the 
land,  it  was  held  that  he  should  be  compelled  to  permit  the 
valuation,  and  that  after  it  was  made,  the  vendee  might  file 
a  supplemental  bill  for  specific  performance."  If  it  be  agreed 
to  sell  at  a  fair  valuation,  without  providing  any  mode  of 
determining  the  value,  the  court  will  adopt  means  for  that 
purpose.'  It  is  the  same,  where  there  is  an  agreement  for  a 
lease  upon  such  usual  and  proper  terms  as  shall  be  adjudged 
by  a  competent  person.'  Where  an  individual  was  admitted 
into  a  firm  upon  the  terms  that  in  case  of  the  dissolution  of 
the  partnership  by  his  death  or  otherwise,  his  share  should 
be  purchased  at  a  valuation  to  be  made  by  a  person  on  each 
side,  it  was  held  that  the  court,  in  order  to  complete  the 
agreement,  could  direct  another  mode  of  valuation  upon 
failure  of  the  one  agreed  upon."  Where  an  agreement  for 
the  sale  of  land  provided  that  personal  property  thereon 
should  be  taken  at  a  valuation  by  valuers  to  be  appointed, 
and  the  vendor  refused  to  complete  and  to  appoint  a  valuer, 
specific  performance  was  decreed  except  as  to  the  personal 

1  Bunnell  v.  Ketletas,  16  Abb.  Pr,,  205. 

''Tscheider  v.  Biddle,  4  Dillon,  55.     See  Biddle  v.  Ramsey,  52  Mo.,  153. 

'  Morse  v.  Merest,  6  Mad.,  26.  ■*  Milnes  v.  Gery,  14  Yes.,  400. 

^  Gourlay  v.  Duke  of  Somerset,  supra .    "  Dinham  v.  Bradford,  L.  R.  5,  Ch.  519. 


6o     CONTRACTS  WHICH  MAY  OR  MAY  NOT  BE  SUBJECTS.    §  45. 

property.'  An  inequitable  refusal  of  a  party  to  refer  to 
arbitration  may  deprive  him  of  the  aid  of  the  court,  on  the 
principle  that  he  who  seeks  equity  must  do  equity.  A  deed 
was  executed  creating  a  lien  for  a  solicitor's  bills  and  ad- 
vances, the  amount  of  which  was  to  be  settled  by  arbitra- 
tion ;  but  the  arbitrator  died  before  making  an  award.  A 
suit  having  been  brought  for  a  re-conveyance  of  the  proper- 
ty, the  court  held  that  as  the  agreement  between  the  par- 
ties was  composed  of  two  distinct  parts — the  first,  admit- 
ting that  some  balance  was  due  to  the  solicitor,  and  the 
second,  a  stipulation  for  a  specific  mode  of  ascertaining 
that  balance,  the  latter  of  which  alone  had  failed — it  would 
not  grant  the  relief  asked  unless  the  plaintiff"  would  consent 
to  do  equity  by  having  the  accounts  taken  by  the  master.'' 
§  45.  Enforcement  of  award. — The  specific  performance 
of  an  award  for  the  doing  of  a  certain  thing — as  to  convey 
land,  assign  securities,  renew  a  lease  at  a  rent  fixed  by  arbi- 
trators, adopt  a  boundary  line,  or  the  like — may  be  en- 
forced, though  not  made  a  rule  or  order  of  the  court.'  And 
though  the  agreement  for  arbitration  names  a  penalty  for 
failure    to    comply  with   the  award,   and  the  losing  party 


1  Richardson  v.  Smith,  L.  R.  5,  Ch.  648.  . 

"  Cheslyn  v.  Dalby,  2  Y.  and  C.  Ex.,  170.  Where  a  lease  made  it  optional 
with  the  lessor,  either  to  take  back  his  property  at  the  end  of  the  term  and  pay 
for  the  improvements,  the  value  of  which  was  to  be  determined  by  arbitrators,  or 
to  renew  the  lease,  and  he  refused  to  do  either,  it  was  held  that,  although  there 
could  not  be  a  decree  for  specific  performance,  and  the  usual  remedy  in  such  a 
case  was  an  action  for  damages,  yet  that,  as  the  court  had  acquired  jurisdiction 
of  the  cause,  it  would  retain  the  suit  for  the  purpose  of  awarding  compensation 
for  the  value  of  the  improvements.     Hopkins  v.  Oilman,  22  Wis.,  476. 

^Hall  v.  Hardy,  3  P.  Wms.,  187;  McNeil  v.  Magee,  5  Mason,  244;  Jones  v. 
Boston  Mills  Corp.,  4  Pick.,  365  ;  Cook  v.  Vick,  2  How.  Miss.,  882  ;  Story  v.  Nor- 
wich &  Worcester  R.R.  Co.,  24  Conn.,  94  ;  Viele  v.  Troy  &  Boston  R.R.  Co., 
21  Barb.,  381  ;  Johnson  v.  Conger,  14  Abb.  Pr.,  195  ;  Caldwell  v.  Dickinson,  13 
Gray,  365  ;  Kelso  v.  Kelly,  i  Daly,  419  ;  Memphis  &  Charleston  R.R.  Co.  v. 
Scruggs,  50  Miss.,  284.  The  authority  of  the  arbitrator  may  be  revoked  by 
either  of  the  parties,  at  any  time  before  the  award  is  made,  unless  the  reference 
is  made  under  an  order  of  the  court ;  and  after  such  revocation,  the  arbitrator 
has  no  power  to  make  an  award.  Haggett  v.  Welsh,  i  Sim.,  134.  See  Skee  v. 
Coxson,  10  B.  &  C,  483  ;  Milne  v.  Gratrix,  7  East.,  608  ;  Green  v.  Pole,  6  Bing., 
443  ;  Allen  v.  Watson,  16  Johns.,  295  ;  Marsh  v.  Packer,  20  Vt.,  193  ;  Tyson 
V.  Robinson,  3  Ired.,  333.  But  a  revocation  of  the  authority  of  arbitrators,  good 
at  law  may  be  bad  in  equity.     Harcourt  v.  Ramsbottom,  i  J.  &  W.,  505. 


§  45-  ENFORCEMENT    OF    AWARD.  6 1 

offers  to  pay  the  penalty/  "  Because  an  award  supposes  an 
agreement  between  the  parties,  and  contains  no  more 
than  the  terms  of  that  agreement  ascertained  by  a  third 
person.'"  Accordingly,  where  the  owners  of  contiguous 
lands  could  not  agree  as  to  their  dividing  line,  and  stipulated 
in  writing  to  leave  it  to  arbitrators,  and  to  stand  to  and 
abide  by  their  decision,  and  an  award  was  made  designating 
the  line,  which  the  owner  who  refused  to  perform  failed  to 
show  was  erroneous,  it  was  held  to  be  a  proper  case  for  a 
decree  of  specific  performance.'  So,  where  the  complain- 
ants filed  their  bill  for  specific  performance  of  an  award 
previously  made  between  the  parties  touching  the  fairness 
and  equality  of  a  partition  of  lands  ;  or  if  the  court  de- 
clined to  decree  specific  performance  of  the  award,  asking 
that  it  would  ascertain  whether  the  partition  was  fair  and 
equal ;  and  the  defendant  answered  that  part  of  the  bill 
praying  for  specific  performance  of  the  award,  and  demur- 
red to  the  remainder ;  it  was  held  that  the  demurrer  was 
well  taken.  If  the  award  was  valid,  both  parties  were  con- 
cluded by  it,  and  the  validity  of  the  partition  could  not  be 
drawn  in  question."    An  award  may  be  specifically  enforced 

*  Whitney  v.  Stone,  23  Cal.,  275. 

nVood  V.  Griffith,  i  Swanst.  54,  per  Eldon,  L.  C;  Blackett  v.  Bates,  L.  R.  i, 
Ch.  1 17  ;  Bouck  v.  Wilber,  4  Johns.  Ch.,  405  ;  Penniman  v.  Rodman,  13  Mete., 
382.  It  has  been  held  in  England,  that  a  railroad  company,  after  notice  to  treat 
for  land  has  been  given  to  the  land-owner,  and  the  price  of  land  has  been  fixed 
by  arbitrators  under  the  lands  clauses  consolidation  act,  is  in  the  same  position 
with  regard  to  the  land-owner  as  an  ordinary  purchaser,  and  will  be  compelled 
by  a  court  of  equity  to  complete  the  purchase.  Harding  v.  Metropolitan  R.R. 
Co.,  L.  R.  7,  Ch.  154.  It  seems  that  the  idea  prevailed  at  one  time  in  England, 
that  a  company,  by  giving  notice  to  treat,  committed  itself  in  such  a  manner  that  a 
court  of  equity  would  hold  that  to  be  an  agreement  on  the  part  of  the  company 
from  which  it  could  not  recede,  and  which  could  be  enforced  before  the  transac- 
tion had  gone  any  further.  It  was,  however,  decided  that  the  giving  notice 
would  only  authorize  the  person  who  received  it  to  insist  that  the  course  pointed 
out  by  the  act  should  be  taken,  and  that  a  mandamus  would  issue  compelling 
the  company  to  summon  a  jury,  or  proceed  to  arbitration  for  the  ascertainment 
of  the  price.  But  the  case  is  different  when  the  price  has  been  determined,  for 
there  are  then  all  the  elements  of  a  complete  agreement,  and  it  becomes  a  bar- 
gain made  under  legislative  enactment  between  the  railroad  company  and  those 
over  whom  it  is  authorized  to  exercise  its  power.  Ibid.,  per  Hatherley,  L.  C, 
referring  to  Adams  v.  Blackwell  R.R.  Co.,  2  Mac.  &  G.,  118. 

^Thompson  v.  Deans,  6  Jones'  Eq.,  22. 

^Emaus  v.  Emaus,  14  N.J.  Eq.,  114. 


62      CONTRACTS  WHICH  MAY  OR  MAY  NOT  BE  SUBJECTS.    §  46. 

when  the  petitioner  cannot  obtain  by  a  verdict  all  that  it 
was  the  object  of  the  award  to  give  him.'  But  not  an 
award  merely  for  the  payment  of  money  which  can  be  re- 
covered at  law,  or  by  the  ordinary  proceedings  upon  the 
award.' 

§  46.  Grounds  for  declining  to  enforce  award. — Suits  for 
the  specific  performance  of  awards  are  not  peculiar,  but  be- 
long to  the  ordinary  jurisdiction  of  courts  of  equity  as  ap- 
plied to  the  specific  performance  of  agreements.  It  rests 
in  the  sound  discretion  of  the  court  to  enforce  awards,  as 
well  as  contracts ;  and  equity  will  not  interfere  where  ob- 
jections to  the  enforcing  of  an  award  appear  upon  its  face 
or  otherwise.'  As  where  the  acts  of  arbitrators  appointed 
for  the  valuation  of  interests  are  not  valid  at  law  as  to  time, 
manner,  or  other  circumstances ;  or  where  the  arbitrators 
have  been  guilty  of  misconduct ;'  unless  there  is  acquies- 
cence or  part  performance.'  Specific  performance  was  re- 
fused of  an  agreement  to  sell  at  a  valuation  which,  on  the 
construction  of  the  agreement,  was  to  be  made  during  the 
lives  of  the  parties,  one  of  whom  had  died  previous  to  the 
award.'  The  same  was  done  where  the  agreement  was  to 
sell  an  estate  at  such  price  as  a  valuer  should  award,  and 
the  award  was  made  partly  in  consideration  of  circum- 
stances w^hich  rendered  it  doubtful  whether  the  valuation 
had  been  estimated  with  due  attention  to  accuracy.'  So  it  has 
been  held  that  the  court  may  inquire  into  the  adequacy  of 
the  consideration,  notwithstanding  it  is  agreed  that  the  sale 
shall  be  made  at  a  valuation  to  be  determined  by  the  arbi- 
trators.' As  the  arbitrators  are  chosen  by  the  parties,  it  is 
not  in  general  a  good  objection  to  an  award,  that  it  is  un- 

'  Kirksey  v.  Fike,  27  Ala.,  383  ;  Jones  v.  Blalock,  31  lb.,  180. 

^Norton  v.  Mascall,  2  Vern.,  24  ;  Turpin  v.  Banton,  Hardin,  Ky.,  312  ;  Howe 
V.  Nickerson,  14  Allen,  400  ;  Babier  v.  Babier,  24  Me.,  42.  Contra,  Wood  v. 
Shepherd,  2  Patton  &  Heath,  Va.,  442. 

=  Backus'  Appeal,  58  Pa.  St.,  186. 

^Chichester  v.  Mclntyre,  4  Bligh,  N.  S.,  78.  ^Norton  v.  Mascall,  supra. 

"Biundell  v.  Brettargh,  17  Ves.,  232,  241.  'Emery  v.  Wase,  8  Ves.,  505. 

■  ^Parken  v.  Whitby,  Turner  &  Russell,  366. 


§  47-  VALUATION    DETERMINED    BY    COURT.  6^ 

reasonable/  Thus,  an  award  was  enforced  notwithstanding 
it  ordered  the  sale  of  an  estate  under  circumstances  which 
greatly  depreciated  its  value.'  But  the  court  will  refuse  to 
enforce  an  award,  on  the  ground  of  its  unreasonableness, 
when  the  decision  of  the  arbitrators  destroys  the  rights  of 
one  of  the  parties  to  the  agreement.'  Where  the  agree- 
ment embodied  in  the  submission  is  of  such  a  nature  that 
the  court  would  not  enforce  it,  it  will  not  enforce  the  award 
founded  on  it.  An  award  which  is  excessive,  or  defective, 
will  not  be  enforced.'  But  an  award  rendered  legally  void 
by  a  mere  clerical  error,  will  be  specifically  decreed,  unless 
its  performance  would  work  injustice.'  If  costs  be  award- 
ed, which  arbitrators  have  no  power  to  do,  specific  perform- 
ance of  the  residue  of  the  award  may  still  be  decreed.'  If 
the  amount  fixed  by  an  award  is  to  be  a  lien  on  the  prop- 
erty, the  lien  attaches  upon  the  making  of  the  award,  and 
furnishes  an  element  of  equity  jurisdiction.' 

§  47.  Valuation  deterinined  by  court. — Where  the  fix- 
ing of  a  value  by  arbitrators  is  not  of  the  essence  of  the 
contract,  the  court  will  carry  the  agreement  into  effect,  and 
will  itself,  if  necessary,  ascertain  the  value.*  Accordingly, 
where  partners  agreed  that  upon  the  determination  of  the 
partnership  one  partner  should  purchase  the  share  of  the 
other  at  a  valuation  to  be  made  by  two  persons,  one  to  be 
appointed  by  each  partner,  and  the  firm  was  carried  on  for 
some  time  under  that  agreement,  it  was  held,  affirming  the 
decree  of  the.  vice-chancellor,  that,  although  the  valuation 
could  not  be  made  in  the  way  proposed,  there  being  no 
provision  in  the  agreement  for  the  appointment  of  an  um- 
pire, yet  that  the  court  would  carry  the  agreement  into  ef- 
fect by  ascertaining  the  value  of  the  share."  Where  an 
ti 

'  Ives  V.  Metcalfe,  i  Atk.,  64.  ^  Wood  v.  Griffith,  i  Swanst.,  43. 

'Nickels  v.  Hancock,  7  De  G.  M.  &  G.,  300.  '  Ibid. 

^Buys  V.  Eberhardt,  3  Mich.,  524.  "  Caldwell  v.  Dickinson,  13  Gray,  365. 

'  Memphis  &  Charleston  R.R.  Co.  v.  Scruggs,  50  Miss.,  284.  See  Overbee  v. 
Thrasher,  47  Ga.,  10. 

"  Richardson  v.  Smith,  L.  R.  5,  Ch.  648 ;  Smith  v.  Peters,  L.  R.  20,  Eq.  511. 
'  Dinham  v.  Bradford,  L.  R.  5,  Ch.  519. 


64      CONTRACTS  WHICH  MAY  OR  MAY  NOT  BE  SUBJECTS.    §  48. 

agreement  was  entered  into  for  the  sale  of  a  public  house 
and  the  fixtures,  furniture,  and  other  effects  at  a  valuation 
to  be  made  by  a  valuer  appointed  by  both  parties  who  un- 
dertook the  valuation,  but  the  vendor  refused  to  allow  him 
to  enter  the  premises  for  that  purpose,  the  court  made  a 
mandatory  order  compelling  the  vendor  to  allow  the  entry ; 
the  court  having  power  to  make  any  interlocutory  order 
which  is  reasonably  asked  as  ancillary  to  the  administration 
of  justice  at  the  hearing.'  So,  where  a  contract  for  a 
lease  provided  that  the  rent  should  be  fixed  by  arbitrators, 
which  was  not  done,  for  the  reason  that  the  landlord  refused 
to  give  a  bond  to  abide  by  the  award,  and  the  tenant,  hav- 
ing taken  possession  and  expended  money  on  the  faith  of 
the  agreement,  filed  a  bill,  it  was  referred  to  a  master  to 
ascertain  what  rent  should  be  paid.°  In  a  suit  for  the  spe- 
cific performance  of  a  covenant  to  renew  a  lease,  where  it 
was  stipulated  that  the  rent  for  the  new  term  should  be  a 
percentage  of  the  value  of  the  premises,  and  that  such  value 
should  be  determined  by  arbitrators,  and  the  lessor  refused 
to  submit  the  matter  to  arbitration,  the  court,  after  hearing 
the  evidence,  enforced  the  contract  in  its  essential  terms.' 

§  48.  Enforcement  of  foreign  contracts. — Specific  per- 
formance may  be  decreed,  notwithstanding  the  subject  of 
the  contract  was  not  originally  within  the  jurisdiction  of 
the  court,  as  the  contract  itself  may  give  the  court  jurisdic- 
tion. Jurisdiction  may  be  acquired  to  enforce  contracts 
entered  into  abroad  by  the  residence  of  the  parties  in  this 
country,  as  was  done  in  the  case  of  a  marriage  contract 
made  in  France,  the  parties  having  gone  to  England.*  But 
a  foreign  contract,  to  be  capable  of  being  enforced  here, 
must  not  only  be  valid  by  the  law  of  the  country  in  which 
it  was  entered  into,  but  consistent  with  the  law  and  policy 


•  Smith  V.  Peters,  supra.  ^  Gregory  v.  Mighell,  18  Ves.,  328. 

'  Strohmaier  v.  Zeppenfield,  3  Mo.  App.  R.,  429 ;  see  City  of  St.  Louis  v.  St. 
Louis  Gaslight  Co.,  5  lb.,  484. 

'  Foubert  v.  Turst,  i  Bro.  P.  C,  129. 


§  48-  ENFORCEMENT    OF    FOREIGN    CONTRACTS.  65 

of  this  country.'  If  the  contract  fall  within  the  fourth 
section  of  the  statute  of  frauds,  it  must  satisfy  the  terms  of 
that  section,  although  in  the  country  where  the  contract 
was  made  it  was  not  required  to  be  in  WTiting ;  that  section 
having  reference  to  the  procedure,  and  not  to  the  solemni- 
ties of  the  contract. "^  The  relief  is  not  restricted  to  per- 
sonal contracts,  but  extends  to  those  concerning  real 
estate,  when  the  parties  reside  within  the  jurisdiction  of  the 
court,^  or  are  temporarily  within  the  jurisdiction,  if  served 

'  Hope  V.  Hope,  26  L.  J.  Ch.,  417.  Mr.  Story  summarizes  some  of  the  excep- 
tions to  the  rule,  as  follows  :  "  A  court  of  equity  has  not  necessarily  jurisdiction 
over  a  subject  of  ordinary  equity  cognizance,  simply  because  the  parties  are 
within  the  forum.  Accordingly,  it  was  held  that  a  court  of  equity  sitting  in 
and  for  one  county  in  the  State  of  Pennsylvania,  had  no  jurisdiction  ov'er  a  bill 
praying  for  an  injunction  against  the  defendant  residing  in  another  county,  but 
who  was  temporarily  within  the  jurisdiction  of  the  court,  for  erecting  a  nuisance 
which  injured  the  plaintiff's  land  in  that  county  ;  for,  to  give  a  complete  remedy 
in  such  cases,  a  court  must  not  only  restrain  and  prevent  the  continuance  of  the 
nuisance,  but  must  order  its  removal,  and  give  compensation  in  damages  for  the 
injury  already  caused ;  and  for  a  court  of  equity  to  give  this  ample  relief,  the 
locus  in  quo  must  be  within  the  absolute  jurisdiction  of  the  court.  So,  it  seems, 
a  court  has  no  jurisdiction  to  order  a  defendant  to  sell  lands  situate  in  a  foreign 
jurisdiction,  when  the  case  would  be  otherwise  within  its  power.  Nor  will  a 
court  of  equity  enforce  against  defendants,  who  have  in  their  hands  proceeds  of 
the  sale  of  lands  situated  out  of  the  jurisdiction,  the  same  equities  to  which  such 
proceeds  would  have  been  unquestionably  subject  had  the  land  sold  been  within 
the  jurisdiction.  The  exercise  of  such  a  power  seems  to  depend  upon  the  fact 
whether  the  contract  sought  to  be  enforced  was  capable  of  being  fulfilled  by  the 
lex  loci  rei  sites.  And  this,  although  the  parties  are  within  the  jurisdiction,  and 
the  proceeds  of  the  land  come  into  their  hands,  in  specie.  And  if  by  the  lex 
loci  rei  sites,  the  land  could  be  alienated  only  upon  the  application  of  the  pro- 
ceeds in  a  particular  manner,  such  a  law  is  valid,  and  courts  of  equity  will  not 
interfere  with  the  proceeds,  though  brought  within  its  jurisdiction." 

^  Leroux  v.  Brown,  12  C.  B.,  801. 

^  Arglasse  v.  Muschamp,  i  Vern.,  75  ;  Toller  v.  Carteret,  2  lb  ,  495  ;  Jackson 
v.  Petrie,  10  Ves.,  164;  Lord  Portarlington  v.  Soulby,  3  M.  &  K.,  loS  ;  Massie 
V.  Watts,  6  Cranch,  158;  Watkins  v.  Holman,  16  Pet.,  25;  Sutphen  v.  Fowler, 
9  Paige  Ch.,  280;  Stansbury  v.  Fringer,  11  Gill.  &  Johns.,  149;  Wood  v.  War- 
ner, 15  N.  J.  Eq.,  81 ;  Olney  v.  Eaton,  66  Mo.,  563.  See  Pingree  v.  Coffin,  2 
Gray,  288.  "  It  is  the  familiar  doctrine  of  a  court  of  equity,  that  it  only  acts 
upon  the  person  of  the  defendant,  and  by  its  process  against  him,  compels  the 
performance  of  acts  necessary  to  do  justice  to  the  plaintiff;  and  the  rule  is,  that 
it  binds  the  person  and  not  the  estate.  The  court  of  chancery  does  not  bind 
the  interest  in  land,  but  enforces  the  party  to  perform  his  own  agreement.  The 
process  of  sequestration  of  the  real  estate  was  only  to  compel  the  party  to  do 
what  he  was  directed  to  do.  This  was  so  clearly  the  principle  of  the  court,  and 
the  mode  of  its  proceeding,  that  it  entertained,  and  still  entertains,  questions  as 
to  property  in  other  countries  out  of  the  jurisdiction  of  the  court,  and  it  inter- 
feres to  stop  proceedings  in  all  courts,  and  even  in  the  courts  of  other  nations ; 
acting,  in  all  cases,  upon  the  person  of  the  defendant  if  within  the  jurisdiction  ; 
and  enforcing  the  performance  of  the  decree  by  personal  process,  commitment, 
and  sequestration,  in  case  of  disobedience."     Batten  on  Specif.  Perform.,,  146, 


66      CONTRACTS  WHICH  MAY  OR  MAY  NOT  BE  SUBJECTS.     §  48. 

with  process/  although  the  contract  was  made  abroad,  and 
is  to  be  performed  there.'  A  contract  to  set  out  a  boun- 
dary between  two  estates  abroad,  according  to  a  line  agreed 
upon,  was  specifically  enforced.'  So  the  foreclosure  of  a 
mortgage  of  immovable  property  situated  abroad  will  be 
decreed  against  the  mortgagor."  Where  it  is  agreed  abroad 
to  deliver  a  thing  in  specie  to  a  person  in  this  country,  and 
the  thing  itself  is  brought  here,  the  court  here,  in  the  exer- 
cise of  its  discretion,  may  see  to  it  that  the  thing  does  not 
leave  this  country  so  as  to  defeat  the  right  of  the  plaintiff 
to  have  it  so  delivered.^  So  a  person  may  be  enjoined 
from  suing  abroad  in  breach  of  a  contract,  or  a  judgment 
creditor  be  compelled  to  convey  land  situated  abroad." 
The  jurisdiction  is  grounded,  like  all  other  jurisdiction  of 
the  court,  not  upon  any  pretension  to  the  exercise  of  ju- 
dicial and  administrative  rights  abroad,  but  on  the  circum- 
stance of  the  person  of  the  party  on  whom  the  order  is 
made  being  within  the  power  of  the  court.'  The  court 
will  not,  by  its  decree,  compel  a  defendant  to  go  into  a 
foreign  State  and  specifically  execute  a  contract  there.  In 
a  recent  case,  the  prayer  of  the  complainant's  bill  was  that 
the  defendant,  a  Georgia  corporation,  might  be  decreed  to 
specifically  perform  the  contract  alleged  to  have  been  made 
with  the  defendant  for  the   right  of  way  for  its  railroad 

147.  Referring  to  Wiseman  v.  Roper,  Vin.  Abr.  5,  532  ;  Foster  v.  Vassall,  3 
Atk.,  589  ;  Penn  v.  Lord  Baltimore,  I  Ves.  Sen.,  444 ;  Lord  Cranstoun  v.  John- 
ston, 3  V^es.,  170;  Jackson  v.  Petrie,  10  lb.,  104  ;  Stratton  v.  Davidson,  i  R.  & 
M.,  485. 

'  Orr  V.  Irwin,  2  Law  Repos.,  N.  C,  465  ;  Cleaveland  v.  Burrell,  25  Barb., 
532  ;  Dooley  v.  Watson,  i  Gray,  414  ;  IVIcGregor  v.  McGregor,  9  Iowa,  65  ; 
Penn  v.  Hayward,  14  Ohio  St.,  302.  But  see  Porter  v.  Worthington,  14  Ala., 
584;  Carter  v.  Jordan,  15  Ga.,  76;  Smith  v.  Iverson,  22  lb.,  190;  Akin  v. 
Lloyd,  28  111.,  331  ;  Birchard  v.  Cheever,  40  Vt.,  94.  , 

^  Myers  v.  De  Mier,  4  Daly,  343.  See  Davis  v.  Parker,  14  Allen,  94.  In 
Wisconsin  it  has  been  held  that  in  a  suit  to  enforce  specific  performance  of  a 
contract  to  convey  land,  a  bill  may  be  filed  in  any  county  of  the  State.  Generally 
suit  should  be  brought  where  the  parties  reside  or  the  land  lies.  Burrall  v. 
Eames,  5  Wis.,  260. 

"  Penn  v.  Lord  Baltimore,  supra.  ^  Toller  v.  Carteret,  supra. 

»  Hart  v.  Herwig,  L.  R.  8,  Ch.  860. 

"  Bailey  v.  Rider,  10  N.  Y.,  363  ;  and  see  Newton  v.  Brownson,  13  lb.,  587. 

'  Lord  Portarlington  v.  Soulby,  supra. 


§  49-         CONTRACTS    INCAPABLE    OF    BEING    ENFORCED.  6/ 

through  the  lands  of  the  complainant  situated  in  South 
Carolina,  and  to  recover  damages  for  the  injury  already 
sustained  from  the  non-performance  of  that  contract.  The 
complainant's  equity  was  based  upon  his  alleged  right  to 
have  the  defendant  compelled,  by  a  decree  of  the  court  of 
Georgia,  to  specifically  perform  the  alleged  contract  in 
South  Carolina,  by  keeping  the  ditches  open  upon  the 
complainant's  land  in  that  State  to  the  depth  of  five  feet, 
and  to  construct  and  keep  in  repair  sufficient  cattle-guards 
or  stock-gaps  upon  the  said  land.  It  was  held  that  the 
suit  could  not  be  maintained,  and  that  the  court  below 
erred  in  overruling  a  demurrer  to  the  bill.' 

§  49.  Contracts  incapable  of  being  enforced. — Equity  will 
not  interfere  when  the  contract  is  such  that  it  is  out  of  the 
power  of  the  court  to  enforce  it.  A  company  having  been 
formed  for  the  purpose  of  supplying  water  to  a  district,  the 
plaintiff  filed  a  bill  alleging  that  in  consequence  of  his  re- 
fusal to  pay  what  he  thought  an  unreasonable  sum  for  the 
water  supplied  to  him,  the  company  threatened  to  cut  off 
his  supply ;  that  the  company  was  bound  to  supply  water 
to  the  inhabitants  of  the  district  on  payment  of  a  reason- 
able rate,  and  was  not  at  liberty  to  sever  from  the  mains 
pipes  laid  with  their  own  consent  so  long  as  the  owners 
continued  to  pay  the  rate  originally  agreed  upon  ;  that  the 
old  rate  paid  by  plaintiff  was  reasonable,  while  that  demand- 
ed was  unreasonable ;  and  he  prayed  that  the  company 
might  be  decreed  to  continue  to  him  his  supply  of  water 
upon  payment  by  him  of  either  the  rate  originally  agreed 
upon,  or  such  other  rate  as  should  be  reasonable,  if  they 
were  not  bound  to  accept  the  old  one ;  for  an  issue  at  law  ; 
and  for  an  injunction  to  restrain  the  company  from  sever- 
ing the  plaintiff's  pipe  from  the  mains,  or  interrupting  his 
supply  of  water.  It  was  held  that  what  the  plaintiff  asked 
could  not  be  granted,  for  the  reason  that  it  was  beyond  the 

'  Port  Royal  R.R.  Co.  v,  Hammond,  58  Ga.,  523.     See/t^j/,  §  49,  reference 
5.  P-  69. 


6S       CONTRACTS  WHICH  MAY  OR  MAY  NOT  BE  SUBJECTS.     §  49. 

power  of  the  court.'  As  already  stated/  a  specific  perform- 
ance will  not,  in  general,  be  enforced  for  a  violation  of  a 
contract  for  the  personal  services  of  an  adult ;  the  remedy 
being  an  action  at  law  for  damages.'  A  court  of  equity 
cannot  enforce  the  performance  of  the  daily  prospective 
duties,  or  direct  the  conduct  of  a  member  of  a  firm  in  mat- 
ters requiring  his  personal  skill  and  judgment  in  the  man- 
agement of  the  business  of  the  firm  ;'  nor  will  specific  per- 
formance be  decreed  of  covenants  in  a  farming  lease.'  So, 
a  covenant  will  not  be  enforced  by  means  of  an  injunction, 
when  the  acts  complained  of  as  breaches  are  frequent,  and 
the  court  cannot  ascertain  whether  in  each  case  there  has 
been  a  breach  without  an  action  at  law  ;  as  of  a  covenant 
not  to  sell  water  to  the  plaintiff's  injury.'  Where  a  con- 
tract for  the  sale  of  land  provided  that  the  purchase  money 
should  be  paid  on  such  terms  as  might  be  agreed  upon  be- 
tween the  parties,  it  was  held  that  the  stipulation  could  not 
be  enforced,  the  court  having  no  power  to  compel  the  par- 
ties to  agree.'  On  the  same  principle,  specific  performance 
of  a  contract  to  loan  money  to  be  secured  by  a  mortgage 
will  not  de  decreed.'     Equity  will  not  enforce  the  perform- 

'  Weak  V.  West  Middlesex  Water  Co.,  i  J.  and  W.,  363.  In  this  case  Lord 
Eldon  said  :  "  Could  I,  under  this  act,  compel  one  inhabitant  to  take  water  from 
this  company?  I  apprehend  I  could  not.  If  the  company  do  not  choose  to 
supply  water,  I  cannot  compel  them  ;  and  if  the  Legislature  meant  to  give  me 
the  right  to  do  it — by  right  I  mean  a  compulsory  means  to  make  them  give  a 
supply — it  ought  to  have  been  taken  care  of  in  the  act.  I  cannot,  upon  principle, 
do  it  without  such  a  power." 

'  Anfe,  §  33.     But  see  posf,  §  117.  '  Haight  v.  Badgeley,  15  Barb.,  499. 

*  Buck  V.  Smith,  29  Mich.,  166.  A  contract  between  a  partner  and  a  firm 
relative  to  the  management  of  a  mill,  the  marketing  of  lumber,  and  the  financial 
affairs  of  the  firm  of  which  he  was  to  have  charge,  cannot  be  specifically  en- 
forced at  the  suit  of  the  representatives  of  the  deceased  partner ;  the  court  hav- 
ing no  means  of  seeing  to  its  execution,  or  of  supplying  the  judgment  or  business 
faculty  of  the  deceased  partner.     Roberts  v.  Kelsey,  38  Mich.,  602. 

'  Rayner  v.  Stone,  2  Ed.,  128.  The  making  of  a  secret  medicine  will  not  be  re- 
strained. An  injunction,  in  such  a  case,  would  be  of  no  use,  unless  a  disclosure 
of  the  secret  were  made  to  enable  the  court  to  ascertain  whether  or  not  it  was 
infringed  ;  otherwise  the  court  would  have  no  means  of  enforcing  its  own  orders. 
Newberry  v.  James,  2  Mer.,  446. 

"  Collins  V.  Plumb,  16  Yes.,  454.  See  City  of  London  v.  Nash,  3  Atk.,  512  ; 
Caswell  V.  Gibbs,  33  Mich.,  331. 

'  Huffy.  Shepard,  58  Mo.,  242. 

'  Rogers  v.  Challis,  27  Beav.,  175  ;  Sichel  v.  Mosenthal,  30  lb.,  371. 


§  49-         CONTRACTS    INCAPABLE    OF    BEING    ENFORCED.  69 

ance  of  continuous  duties  involving  personal  labor  and  care 
of  a  particular  kind  which  the  court  cannot  superintend,  as  : 
the  working  of  points  and  signals  on  the  line  of  a  railroad 
requiring  constant  supervision  ;'  or  a  contract  to  build  and 
equip  a  railroad  f  or  to  work  all  the  trains  on  a  railroad,  and 
keep  the  engines  and  rolling  stock  in  repair  f  or  to  use  the  rail- 
road of  another  company  with  engines  and  trains,  which  the 
court  cannot  regulate  and  control  ;*  or  an  agreement  by  a 
railroad  company  to  maintain  and  keep  in  repair  cattle-guards 
upon  the  land  of  the  plaintiff ;'  or  a  covenant  in  the  lease  of  a 
coal  mine  to  work  the  mine  efficiently  ;"  or  an  agreement  by 
a  street  railroad  company  to  run  cars  along  a  particular  street 
daily,  "  at  such  regular  intervals  as  may  be  right  and  proper," 
whether  the  obligation  of  the  company  rests  in  contract, 
or  is  derived  from  the  provisions  of  its  charter/  The  own- 
ers of  land  granted  to  a  company  the  lease  of  a  coal  mine, 
reserving  a  minimum  rent  of  seven  hundred  and  twenty 
pounds  to  be  increased  to  a  thousand  pounds  in  case  there 
should  be  pits  sunk  upon  the  estate,  with  a  royalty  upon 
all  coal  obtained  beyond  a  certain  quantity ;  and  the  lessees 
covenanted  to  work  the  mine  uninterruptedly,  efficiently, 
and  regularly,  according  to  the  usual  and  most  approved 
practice.  The  lessees  paid  the  minimum  rent,  but  only 
mined  a  small  quantity  of  coal  by  working  through  an  ad- 
joining mine,  without  sinking  pits  on  the  lessors'  property. 
The  plaintiffs  being  desirous  of  enforcing  a  large  amount 
of  work,  whereby  an  increased  rent  would  be  payable,  filed 
a  bill  for  specific  performance.    It  was  held  that  the  lessees 


1  Powell  Duffryn  Steam  Coal  Co.  v.  TaffVale  R.R.  Co.,  L.  R.  9,  Ch.  331. 
"  Danforth  v.  Phila.,  etc.,  R.R.  Co.,  30  N.  J.  Eq.,  12. 

2  Johnson  v.  Shrewsbury  and  B.  R.R.,  3  De  G.  M.  and  G.,  914. 

*  Powell  Duffryn  Steam  Coal  Co.  v.  TaffVale  R.R.  Co.,  supra. 

*  CClumbus,  etc.,  R.R.  Co.  v.  Watson,  26  Ind.,  50. 

"  Wheatley  v.  W^estminster  Coal  Co.,  L.  R.  9,  Eq.  538  ;  Lord  Abinger  v.  Ask- 
ton,  17  lb.,  358. 

'  McCann  v.  South,  etc.,  R.R.  Co.,  2  Tenn.  Ch.,  773.  Mandamus  or  proceed- 
ings in  the  name  of  the  State  is  the  remedy  for  enforcing  a  duty  imposed  on  a 
corporation  by  its  charter. 


70      CONTRACTS  WHICH  MAY  OR  MAY  NOT  BE  SUBJECTS.     §  49  . 

were  under  no  obligation  to  sink  pits,  although  that  might 
be  the  most,  effectual  mode  of  working ;  that  if  the  lessees 
had  committed  any  breach  of  contract,  the  remedy  was  not 
in  equity,  but  at  law ;  and  that  the  court  could  not,  by  a 
reference  to  chambers,  give  effect  to  the  covenant  by  direc- 
tions as  to  the  management  of  a  coal  mine/  S.  granted  to 
a  railroad  company  a  right  of  way  through  his  premises  on 
condition  that  the  company  would  place  beside  its  road  on 
said  premises  a  platform  convenient  for  loading  and  un- 
loading cars,  take  therefrom  all  produce  shipped  by  S.,  and 
bring  and  place  thereon  all  freight  shipped  by  or  for  him 
to  that  point  from  any  other  station  on  the  road,  provided 
the  company  had  three  days'  notice.  Held  that  S.  could 
not  compel  specific  performance.'     Within  the  foregoing 

^  Wheatly  v.  Westminster  Coal  Co.,  supra. 

*  Atlanta,  etc.,  R.R.  Co.  v.  Speer,  32  Ga.,  550.  In  this  case  the  court  said  : 
"  We  are  not  asked  to  compel  the  plaintiffs  in  error  to  transport  a  particular 
article  of  freight  now  being  on  the  platform  awaiting  transportation— we  are 
asked  that  they  shall,  in  all  future  time,  transport  all  freight  and  deliver  it  as 
required  by  defendant  in  error  in  the  terms  of  the  contract.  It  is  evident  that 
any  such  decree  must  be  as  general  and  as  indefinite  in  its  terms  as  the  contract 
itself.  It  cannot  be  specific  as  to  the  kind  of  produce,  the  quality,  the  time  of 
performance ;  nor  can  the  court  make  a  decree  which  will  be  satisfied  by  any 
specific  act  of  performance.  After  decree  made,  the  case  must  be  kept  open, 
and  if  the  defendant  in  that  decree  be  contumacious,  there  must  be  action  of  the 
court  to  enforce  it  twenty,  perhaps  fifty,  times  a  year  for  all  time.  Besides,  in 
regard  to  each  alleged  violation  of  the  contract,  the  other  party  is  entitled  to  a 
hearing.  He  may  insist  that  the  freight  in  question  at  one  time  is  not  of  the 
description  contemplated  in  the  contract ;  at  another,  that  it  is  not  the  property 
of  the  party  complaining ;  at  still  another,  that  notice  had  not  been  given  in  the 
terms  of  the  contract.  We  are  satisfied  that  this  is  not  a  contract  of  which  per- 
formance can  be  compelled  by  one  sweeping  decree  embracing  all  time  and  ail 
instances  demanding  performance.  The  party  has  an  adequate  remedy  at  law, 
and  doubtless  would  be  redressed  there."  The  following  clause  in  a  deed  to  a 
railroad  company  is  incapable  of  being  specifically  enforced  :  "  This  conveyance 
is  made  upon  the  express  condition  that  said  railroad  company  shall  build,  erect, 
and  maintain  a  depot  or  station-house  on  the  land  herein  described,  suitable  for 
the  convenience  of  the  public,  and  that  at  least  one  train  each  w'ay  shall  stop  at 
such  depot  or  station  each  day  when  trains  run  on  said  road,  and  that  freight 
and  passengers  shall  be  regularly  taken  at  such  dep6t."  Blanchard  v.  Detroit, 
etc.,  R.R.  Co.,  31  Mich.,  43.  Graves,  Ch  J.:  "Can  the  court  see  that  in  all 
coming  time  these  requirements  are  carried  out  ?  Can  it  know  or  keep  informed 
whether  trains  are  running,  and  what  accommodations  are  suitable  to  the  public 
interest  ?  Can  it  see  whether  the  proper  stoppages  are  made  each  day  ?  Can 
it  take  notice  or  legitimately  and  truly  ascertain  from  day  to  day  what  amounts 
to  regularity  in  the  receipt  and  discharge  of  passengers  and  freight?  Can  it 
have  the  means  of  deciding  at  all  times  whether  the  due  regularity  is  observed.? 
Can  it  superintend  and  supervise  the  business,  and  cause  the  requirements  in 
question  to  be  carried  out  ?     If  it  can,  and  if  it  may  do  this  in  regard  to  one  sta- 


§  49- 


CONTRACTS    INCAPABLE    OF    BEING    ENFORCED.  7 1 


rule,  an  agreement  to  cultivate  a  particular  crop,  and  to 
cut,  cure,  and  deliver  it  in  a  prescribed  manner,  is  not  such 
a  contract  as  the  court  has  jurisdiction  to  enforce  or  to 

tion  on  the  road,  it  may,  with  equal  propriety,  upon  a  like  showing,  do  the  same 
in  regard  to  all  stations  on  the  road,  and  not  only  so,  but  in  regard  to  all  sta- 
tions on  all  the  present  and  future  roads  in  the  State.  That  any  such  jurisdic- 
tion is  impracticable  appears  plain,  and  the  fault  lies  in  the  circumstance  that 
the  objects  of  the  parties,  as  they  were  written  down  by  them,  are,  by  their  very 
nature,  insusceptible  of  execution  by  the  court."  In  a  suit  for  specific  perform- 
ance by  a  land-owner  against  a  railroad  company,  it  appeared  that  the  company, 
in  consideration  of  the  right  of  way  for  their  track  over  the  plaintiffs  land, 
agreed  to  fence  the  same,  to  deliver  to  the  plaintiff  certain  bonds,  and  to  release 
him  from  a  subscription  to  the  stock  of  the  company.  It  was  held  that  the  facts 
alleged  entitled  the  plaintiff  to  a  judgment  for  damages,  but  not  to  specific  per- 
formance. Cincinnati  &  Chicago  R.R.  Co.  v.  Washburn,  25  Ind.,  259.  A 
court  of  equity,  as  a  temporary  measure  during  the  pendency  of  a  litigation,  may 
undertake  by  means  of  a  receiver  to  operate  a  railroad.  Coe  v.  Columbus,  etc., 
R.R.  Co.,  10  Ohio  St.,  372.  But  it  will  only  do  this  when  the  demand  for  the 
exercise  of  such  a  jurisdiction  is  imperative,  and  the  court  can  make  an  order  ot 
limited  duration,  and  give  precise  directions  as  to  the  manner  in  which  the  order 
shall  be  carried  out.  Port  Clinton  R.R.  Co.  v.  Cleveland  &  Toledo  R.R.  Co., 
13  lb.,  544;  see  Richmond  v.  Dubuque  &  Sioux  City  R.R.  Co.,  33  Iowa,  422.  A 
demurrer  was  sustained  to  a  bill  filed  for  the  specific  performance  of  an  award 
which  required  that  the  defendant  should  execute  to  the  plaintiff  a  lease  of  the 
right  to  such  part  of  a  railway  made  by  the  plaintiff  as  was  on  the  defendant's 
land,  and  that  the  defendant  should  be  entitled  to  run  carriages  on  the  whole 
line  on  certain  terms,  and  might  require  the  plaintiff  to  supply  engine-power, 
while  the  latter  should  have  an  engine  on  the  road  ;  and  that  the  plaintiff,  dur- 
ing the  whole  time,  should  keep  the  entire  railroad  in  good  repair.  The  court 
remarked  that  it  "had  no  means  of  enforcing  the  performance  of  daily  duties 
during  the  term  of  the  lease ;  that  it  could  do  nothing  more  than  punish  the 
party  by  imprisonment  or  fine  in  case  of  failure  to  perform  them,  and  might 
be  called  on  for  a  number  of  years  to  issue  repeated  attachments  for  de- 
fault." Blackett  v.  Bates,  L.  R.  i,  Ch.  117,  per  Lord  Cranworth.  Spe- 
cific performance  was  refused  of  a  contract  concerning  the  use  and  en- 
joyment of  a  quarry  providing  for  "  the  delivery  of  certain  kinds  of  marble 
in  good  sound  blocks  of  a  suitable  size,  shape,  and  proportion,  and  to  quarry 
to  order,  as  might  be  wanted  to  keep  the  mill  fully  supplied  at  all  times, 
the  amount  to  be  not  less  than  75,000  feet  per  annum,  and  for  so  long  a  time  as 
the  said  Ripley,  his  heirs,  executors,  administrators,  and  assigns,  might  want." 
The  court  said :  "  The  agreement  being  for  a  perpetual  supply  of  marble,  no  de- 
cree the  court. can  make  will  end  the  controversy.  If  performance  be  decreed, 
the  case  must  remain  in  court  forever,  and  the  court,  to  the  end  of  time,  may  be 
called  on  to  determine,  not  only  whether  the  prescribed  quantity  of  marble  has 
been  delivered,  but  whether  every  block  was  from  the  right  place,  whether  it  was 
sound,  whether  it  was  of  suitable  size,  or  shape,  or  proportion.  Meanwhile,  the 
parties  may  be  constantly  changing.  It  is  manifest  that  the  court  cannot  super- 
intend the  execution  of  such  a  decree.  It  is  quite  impracticable.  And  it  is 
certain  that  equity  will  not  interfere  to  enforce  part  of  a  contract,  unless  that  part 
is  clearly  severable  from  the  remainder."  Marble  Co.  v.  Ripley,  10  Wall.,  339. 
In  a  suit  to  compel  the  defendant  to  convey  to  the  plaintiff  certain  land,  it  ap- 
peared that  the  defendant  and  another  person  owned  the  land,  and  that,  being 
desirous  of  having  it  partitioned,  the  defendant  employed  the  plaintiff  to  do  the 
busmess,  agreeing  that,  for  plaintiff's  services,  he  would  convey  to  him  three 
hundred  and  twenty  acres  of  defendant's  share  of  the  land.  A  bond  was  giv'en 
to  secure  the  performance  of  this  agi-eement,  giving  to  the  plaintiff  the  right  of 


72      CONTRACTS  WHICH  MAY  OR  MAY  NOT  BE  SUBJECTS.     §  49. 

estimate  the  damages  for  its  breach."  But  if  the  work 
agreed  to  be  done  is  definite,  and  there  is  no  remedy  at 
law,  specific  performance  will  be  decreed ;  as,  the  construc- 
tion by  a  railroad  company  of  an  archway  under  their  road 
pursuant  to  their  contract.'  So,  specific  performance  was 
decreed  of  a  contract  between  the  owner  of  land  and  a  rail- 
way company,  that,  in  consideration  of  the  previous  with- 
drawal by  the  land-owner  of  a  petition  to  Parliament 
against  the  company's  bill,  the  company  would  construct 
and  forever  maintain  at  their  expense  a  siding  of  a  specified 
length  along  the  line  upon  the  premises  of  the  land-owner 
and  set  apart  by  him  for  that  purpose.'  The  contract  of  a 
railroad  company  to  construct  bridges,  works,  and  ap- 
proaches on  land  of  the  plaintiff  crossed  by  its  line  was 
specifically  enforced  where  a  substituted  agreement  after- 
ward made  had  become  incapable  of  fulfilment  in  conse- 
quence of  the  death  of  the  person  agreed  upon  to  fix  the 
damages.* 

selection,  and  making  it  incumbent  on  the  defendant  to  convey  as  soon  as  the 
selection  was  made.  A  partition  having  been  partly  effected,  further  proceedings 
therein  were  postponed  until  the  boundaries  of  the  land  could  be  fixed  by  the 
proper  authorities.  This  was  not  done  until  three  years  afterward,  when  the 
plaintiff  proposed  to  complete  the  partition  ;  but  the  defendant  refused  to  allow 
him  to  do  so ;  whereupon  he  made  a  selection,  and  demanded  a  conveyance.  It 
was  held  that,  as  the  plaintiff  could  not  be  compelled  to  complete  the  services 
he  had  agreed  to  perform,  nor  the  defendant  to  accept  them,  the  contract  was 
not  one  which  could  be  specifically  enforced.  Cooper  v.  Pena,  21  Gal.,  403. 
Although  usually  a  contract,  relating  to  personal  services,  will  not  be  specifically 
enforced,  but  the  party  aggrieved  will  be  left  to  his  remedy  at  law,  yet  there  is 
an  exception  to  the  rule,  when,  by  the  contract,  something  is  to  be  done,  on  a 
party's  own  land,  of  such  a  nature  that  the  opposite  party  will  be  deprived  of  the 
benefit  of  labor  and  materials  bestowed  thereon,  unless  the  contract  is  carried 
out,  and  the  owner  of  the  land  is  attempting  thus  to  deprive  him.  Within  this 
principle,  a  contract  between  a  water-power  company  and  a  city,  that  the  former 
should  construct  certain  extensive  water-works,  of  a  capacity  to  supply  the  city 
daily  with  a  specified  quantity  of  water,  the  works  having  been  constructed,  was 
enforced  against  the  city.  Columbia  Water-Power  Co.  v.  Columbia,  5  S.  C, 
225. 

'  Starens  v.  Newsome,  I  Tenn.  Ch.,  239.     See  attte,  §  34. 

^  Storer  v.  Gt.  Western  R.R.  Co.,  2  Y.  and  G.  C.  C,  48. 

'  Greene  v.  West  Cheshire  R.R.  Co.,  L.  R.  13,  Eq.  44. 

*  Firth  v.  Midland  R.R.  Co.,  L.  R.  20,  Eq.  492. 


BOOK   II. 

JURISDICTION,    HOW   EXERCISED. 


CHAPTER   I. 


WHO    MAY    SUE    OR    BE    SUED. 

50.  Who  in  general  competent  to  bring  suit. 

51.  Exceptions  to  general  rule. 

52.  Parties  to  marriage  articles. 

53.  Person  not  a  party  to  contract  who  is  nearly  related. 

54.  When  the  contract  changes  the  eondition  in  life  of  a  third  person. 

55.  Persons  interested  in  subject  of  sale. 

56.  Persons  having  adverse  or  inconsistent  rights. 

57.  Strangers  to  contract  claiming  adversely  to  both  parties. 

58.  Stranger  to  contract  not  in  general  a  necessary  party. 

59.  Rule  as  to  sub-purchasers. 

60.  Purchasers  of  different  parcels  of  land. 

61.  Where  several  are  interested. 

62.  In  case  of  death  of  vendor. 

63.  Executor  or  administrator,  heir  or  devisee  of  party. 

64.  Alienee  taking  subsequent  to  contract  with  notice. 

65.  Where  a  contract  is  made  by  a  trustee. 

66.  In  case  of  contract  concerning  real  estate  of  wife. 

67.  Where  new  contract  is  substituted. 

68.  When  assignee  of  agreement  may  maintain  suit. 

69.  Parties  to  bill  in  case  of  assignment, 

70.  Suit  by  assignee  of  mortgage. 

71.  Purchaser  of  vendee's  title  at  public  sale. 

72.  Where  the  contract  is  personal. 

73.  In  case  of  concealed  beneficiary. 

74.  When  there  is  a  provision  against  assignment,  or  the  assignment  is  void. 

75.  Rule  where  third  person  has  notice  of  the  contract. 

76.  Principle  of  notice  not  restricted. 

77.  Where  public  company  becomes  consolidated  with  another  company. 

78.  Rights  and  liability  of  purchaser  of  equitable  title. 

79.  W'here  the  interests  of  plaintiff  are  merely  equitable. 

80.  Notice  to  vendor  of  agreement  by  vendee  with  third  person. 

81.  Contract  by  promoters  of  public  company. 

82.  Liability  of  company  under  contract  of  its  promoters. 

83.  Company  must  be  able  to  fulfil  agreement  of  its  promoters. 

84.  Agent  contracting  as  such. 

85.  Where  agent  contracts  as  principal. 

86.  Agent  appearing  as  principal,  but  in  fact  contracting  as  agent. 

87.  Determination  of  interest  by  death  of  party. 

§  50.  By  whom    in  general  suit  should  be  brought. — 
Either  party  to  an  executory  contract  for  the  sale  of  land, 


74  WHO    MAY    SUE    OR    BE    SUED.  §  5O. 

may,  as  has  been  seen,  resort  to  a  court  of  equity  to  enforce 
specific  performance/  Those  who  entered  into  the  contract, 
or  who  stand  in  their  place  or  are  interested  in  the  subject 
matter,  are,  as  a  rule,  the  only  proper  parties  to  the  suit  ;* 
and  a  partial  assignment  of  the  complainant's  interest  be- 
fore the  commencement  of  the  suit  to  a  person  who  does 
not  join  in  the  bill,  is  no  defence.'  In  England,  subject  to 
some  exceptions,  a  stranger  to  the  contract  cannot  sue  on  it 
either  at  law  or  in  equity,  notwithstanding  he  may  take  a 
benefit  under  it ;'  and  the  same  thing  has  sometimes  been 
held  here.  A.  covenanted  with  B.'s  mother  to  convey  a  tract 
of  land  to  B.  on  his  coming  of  age,  in  consideration  that 
the  mother  would  relinquish  to  A.  the  care  and  control  of 
B.  until  that  time.  It  w^as  held  that  the  son  could  not 
maintain  a  suit  for  specific  performance.'     So  where  a  per- 

^  Ante,  §  15.  McKee  v.  Beall,  3  Litt.  Ky.,  190;  McWhorter  v.  McMahan,  i 
Clarke,  N.  Y.,  400.  Where  a  party  sells  land  which  has  been  decreed  to  him, 
but  for  which  no  conveyance  has  been  made,  the  purchaser  may  compel  a  con- 
veyance to  himself  by  an  original  bill.  Respass  v.  McClanahan,  2  A.  K.  Marsh, 
577- 

''Ante,  §  14.  Humphreys  v.  Hollis,  Jac.,73  '■>  Wood  v.  White,  4  M.  and  Cr.,  460. 
See  Boone  v.  Chiles,  10  Pet.,  177;  Buchanan  v.  Upshaw,  i  How.,  56;  Tobey  v. 
County  of  Bristol,  3  Story,  800 ;  Bissell  v.  Farmer's,  etc..  Bank,  5  McLean, 
495  ;  Fagan  v.  Barnes,  14  Fla.,  53.  "Generally,  to  a  bill  for  a  specific  perform- 
ance of  a  contract  of  sale,  the  parties  to  the  contract  are  the  only  proper  parties  ; 
and  when  the  ground  of  the  jurisdiction  of  courts  of  equity  in  suits  of  that  kind 
is  considered,  it  could  not  properly  be  otherwise It  is  obvious  that  per- 
sons, strangers  to  the  contract,  and  therefore  neither  entitled  to  the  rights  nor 
subject  to  the  liabilities  which  arise  out  of  it,  are  as  much  strangers  to  a  pro- 
ceeding to  enforce  the  execution  of  it,  as  they  are  to  a  proceeding  to  recover 
damages  for  the  breach  of  it."  Lord  Cottenham,  in  Tasker  v.  Small,  3  My.  and 
Cr.,  63.  Parties  for  whose  benefit  a  contract  was  not  made,  and  who  were 
neither  parlies  nor  privies  to  it,  are  not  entitled  to  a  specific  performance.  Beards- 
ley  Scj'the  Co.  V.  Foster,  36  N.  Y.,  561  ;  Bacot  v.  Wetmore,  17  N.  J.  Eq.,  250. 
A  creditor  at  large,  who  has  not  obtained  judgment,  and  who  has  no  claim  upon 
the  property  of  his  debtor,  has  no  right  to  call  for  the  specific  execution  or  rescis- 
sion of  the  debtor's  contracts  for  his  ow'n  benefit.  Griffith  v.  Frederick  County 
Bank,  6  Gill  and  Johns.,  424.  The  rule  is,  that  the  remedy  in  equity  shall  either 
be  between  the  parties  who  stipulated  what  is  to  be  done,  or  those  who  stand 
in  their  place.  Burgess  v.  Wheate,  i  W.  Bl.,  129.  See  post,  §§  58  {note  3),  81, 
84-86. 

'Willard  V.  Tayloe,  8  Wall,  557. 

■*  Peele  ex  parte,  6  Ves.,  602;  Crow  v.  Rogers,  i  Str.,  592  ;  Berkley  v.  Hardy, 
5  B.  and  C,  355  ;  Lord  Southampton  v.  Brown,  6  lb.,  718  ;  Colyear  v.  Countess 
of  Mulgrave,  2  Ke.,  98;  Hill  v.  Gomme,  5  M.  and  Cr.,  250,  256. 

'  Denbo  v.  Upton,  2  Ind.,  20.  One  of  two  joint  purchasers  of  land  may  main- 
tain a  suit  against  the  other  in  whose  name  the  purchase  was  made,  to  compel 
a  conveyance  of  the  plaintiff's  share.     Levy  v.  Brush,  8  Abb.  Pr.  N.  S.,  418. 


§§   5T>   52-  TO    ENFORCE    MARRIAGE    CONTRACT.  75 

son  who,  in  consequence  of  protracted  litigation  for  the  re- 
covery of  property,  had  become  indebted  to  his  soHcitor  to 
a  large  amount,  agreed  with  his  brother  to  relinquish  his  in- 
terest in  the  property  to  his  brother  in  consideration  that 
the  latter  would  undertake  to  pay  the  costs  already  incurred, 
with  interest,  it  was  held  that,  as  the  solicitor  was  not  a 
party  to  the  agreement,  he  could  not  enforce  it/  The  fol- 
lowing case,  which  at  first  seems  to  be  at  variance  with  the 
principle  under  consideration,  is  not  so  in  reality  :  A.  and 
B.  were  tenants  in  common  of  certain  real  estate  ;  and  A., 
who  had  been  tenant  of  B.'s  moiety,  and  in  arrear  to  him 
for  rent,  contracted  with  B.  to  execute  to  the  plaintiff  such 
lease  of  the  whole  premises  as  B.  and  the  plaintiff  should 
agree  upon,  and  that  all  the  rent  should  be  paid  to  B.  until 
the  arrears  due  to  him  were  satisfied.  B.  agreed  with  the 
plaintiff  for  a  lease  of  the  property  at  thirty  pounds  per  an- 
num, and  executed  a  lease  of  his  half,  at  fifteen  pounds  per 
annum.  But  A.  refused  to  do  the  same  with  respect  to  his 
moiety.  On  a  bill  for  specific  performance  filed  by  the  plain- 
tiff against  A.  and  B.,  it  was  urged  that  as  the  plaintiff  was 
a  stranger,  the  suit  could  not  be  maintained.  The  objec- 
tion was,  however,  overruled,  on  the  ground  that  B.  might 
be  regarded  as  the  agent  of  the  plaintiff  in  the  contract." 

§  51.  Exceptions  to  ride  as  to  party  complainant. — Ex- 
ceptions to  the  above-mentioned  rule,  arise:  ist.  Where  a 
person  is  beneficially  entitled  under  a  marriage  settlement 
to  which  he  was  not  a  party.  2d.  In  the  case  of  near  rela- 
tionship between  the  contracting  party  and  the  stranger. 
3d.  Where  a  part  performance  of  the  contract,  by  changing 
the  status  of  the  stranger,  has  entitled  him  to  insist  upon 
its  completion. 

§  52.  Who  may  sue  to  enforce  marriage  contract. — ist. 
Not  only  the  parties  to  marriage  articles,  but  those  for 
whose  benefit  they  are  entered  into,  and  especially  the  issue 

1  Moss  V.  Bainbrigge,  i8  Beav.,  478,  482 ;  S.  C.  on  Appeal,  6  De  G.  M.  and 
G.,  292. 

"^  Hook  V.  Kinnear,  3  Swanst.,  417,  note  ;  per  Lord  Hardwicke. 


']6  WHO    MAY    SUE    OR    BE    SUED.  §   52. 

of  the  marriage,  are  regarded  as  purchasers,  and  in  that  ca- 
pacity entitled  to  the  specific  performance  of  the  contract. 
It  is  well  settled,  that  "  in  marriage  contracts  the  children 
of  the  marriage  are  not  only  objects  of,  but  ^?m6-z' parties  to 
it."'  Collaterals  were  formerly  excluded.  But  the  same 
principle  is  now  established  with  regard  to  them ;  it  being 
impossible  for  the  court  to  know  what  collateral  branches 
may  have  been  in  the  minds  of  the  contracting  parties  at 
the  time  of  the  contract.  Furthermore,  as  the  trustees 
might  bring  an  action  at  law  for  the  non-performance  of 
the  covenant  to  settle,  and  the  measure  of  damages  in  such 
action  would  be  the  interests  of  all  their  cestuis  que  trust, 
the  collaterals  would  thus  enjoy  the  benefit  of  the  covenant ; 
and  the  relief  in  equity  must  be  at  least  commensurate  with 
the  damages  at  law.*  The  principle  under  consideration  is 
also  applicable  to  appointees  of  the  wife  under  a  power  in- 
serted in  the  articles  ;  such  appointees,  in  respect  to  the 
husband,  claiming  under,  and  standing  in  the  place  of,  a 
purchaser."  Mr.  Fry'  remarks  that  no  case  shows  that  a 
collateral  ever  enforced  the  articles  against  the  covenantor 
solely  on  the  ground  of  relationship,  but  that  "  in  each  case 
the  party  who  had  exacted  the  stipulation  was  dead  with- 
out having  in  any  way  released  it,  and  the  claimants  have 
sought  to  stand  in  the  place  of  the  party  who,  for  a  valuable 
consideration  as  regards  the  original  settlement,  had  exacted 
the  stipulation  sought  to  be  enforced.  It  does  not  there- 
fore follow  that  the  original  parties  to  the  settlement  could 
not  release  it  as  against  collaterals,  or  that  collaterals  could 
enforce  it  against  such  parties,  supposing  them,  or  those  of 
them  through  whom  the  collaterals  claimed,  to  be  alive  and 
resisting  performance."^ 

'  Lord  Cottenham,  in  Hill  v.  Gomme,  5  M.  and  Cr.,  254;  Fry  on  Specif.  Per- 
form., 42,  43.     See  Gray  v.  McCune,  23  Pa.  St.,  447. 

■■'  Goring  v.  Nash,  3  Atk.,  186  ;  Davenport  v.  Bishop,  i  Phil.,  698  ;  Edwards 
V.  Countess  of  Warwick,  2  P.  Wms.,  171  ;  Os.cjood  v.  Strode,  lb.,  245  ;  Vernon 
V.  Vernon,  lb.,  594;  Affd.  i  Bro.,  P.  C,  267  ;  Stephens  v.  Trueman,  i  Ves.  Sen., 
73;  Pulvertoft  V.  Pulvertoft,  18  Ves.,  84,  92. 

'  Campbell  v.  Ingilby,  21  Beav.,  567  ;  Affd.,  26  L.  J.  Ch.,  654. 

*  Specif.  Perform.,  44,  45.  '  Hill  v.  Gomme,  supra. 


§§  53'   54-  SUIT    BY    STRANGER.  "J^J 

§  53.  Near  relative  entitled  to  sue. — 2d.  When  one  of 
the  parties  to  a  contract  is  nearly  related  to  the  person  to 
be  benefited  by  it,  the  latter  may  maintain  a  suit  thereon. 
Accordingly,  where  a  man  promised  his  physician  that  if 
the  latter  would  effect  a  certain  cure  he  would  pay  a  given 
sum  to  the  physician's  daughter,  it  was  held  that  she  might 
sue.'  So,  in  an  action  brought  by  a  husband  and  wife,  the 
plaintiffs  alleged  that  the  wife's  father,  being  seized  of  an 
estate,  which  afterward  descended  to  the  defendant,  was 
about  to  cut  down  one  thousand  pounds  worth  of  timber, 
to  raise  a  portion  for  his  daughter,  when  the  defendant 
promised  the  father  that,  if  he  would  not  fell  the  timber,  he 
would  pay  the  daughter  one  thousand  pounds.  The  plain- 
tiffs having  obtained  a  verdict,  it  was  moved  in  arrest  of 
judgment,  that  the  father  alone  could  have  brought  the  suit. 
But  the  objection  was  overruled,  on  the  ground  of  nearness 
of  relationship."' 

§  54.  3d.  Suit  by  stranger  whose  condition  has  been 
changed. — Another  exception  to  the  general  rule,  that  a 
stranger  deriving  a  benefit  from  a  contract,  cannot  sue  on 
it,  arises  where  the  contract  has  been  so  far  performed  as  to 
change  the  condition  in  life  of  the  stranger,  and  to  raise  in 
him  reasonable  expectations  grounded  on  the  conduct  of 
the  contractor.  Where,  for  instance,  a  gentleman  of  wealth 
enters  into  an  agreement  with  a  poor  man,  that  the  former 
will  take  the  child  of  the  latter,  bring  him  up  in  affluence, 
and  leave  him  certain  property,  and  there  is  a  part  perform- 
ance, the  child  is  entitled  to  have  the  agreement  carried  out ; 
his  right  being  derived  not  from  the  contract  itself,  but 
from  what  has  been  done  under  it,  and  the  wrong  he  will 


'  Physician's  case,  cited,  i  Ventr. ,  6. 

*  Button  V.  Pool,  II  Ventr.,  318,  332  ;  Martyn  v.  Hind,  Cowp.,  443.  Relation- 
ship more  remote  than  that  of  parent,  child,  or  wife,  carries  with  it  no  moral  ob- 
ligation upon  which  a  court  of  equity  will  found  a  decree  for  the  specific  perform- 
ance of  a  mere  executory  contract.  Buford  v,  McKee,  i  Dana,  107  ;  Hayes  v. 
Kershaw,  i  Sandf.  Ch.,  258;  Reed  v.  Vannorsdale,  2  Leigh.,  569;  Caldwell  v. 
Williams,  Bailey  Ch.,  175.  See  Chandler  v.  Neale,  2  Hen.  and  Munf.,  124; 
Parker  v.  Carter,  4  Munf.,  273  ;  Hawey  v.  Alexander,  i  Rand,  219. 


78  WHO    MAY    SUE    OR    BE    SUED.  §  55- 

Otherwise  sustain.'  In  New  Jersey  an  infant  child  went  to 
live  with  his  uncle,  under  an  agreement  between  the  father 
of  the  child  and  the  uncle,  that  the  latter  should  adopt  the 
child  as  his  own.  The  child  lived  with  his  uncle  twenty- 
five  years,  and  had  no  share  of  his  father's  estate,  by  reason 
of  the  expectations  founded  on  this  agreement ;  and  it  was 
held  that  the  child  might  maintain  a  suit  to  enforce  a  ful- 
filment of  the  agreement  on  the  part  of  the  uncle." 

§  55.  Persofis  havi7ig  an  interest  in  subject  of  contract. — 
All  persons  interested  in  an  estate  which  has  been  made  the 
subject  of  a  contract  for  sale,  are  proper  parties  to  a  suit  for 
specific  performance  ;  and  if  minor  children  have  been  im- 
properly made  parties,  the  rest  of  the  bill  will  not  be  im- 
paired thereby.'  Where  specific  performance  is  sought  of 
an  agreement  for  the  sale  of  land,  persons  who  were  not 
parties  to  it,  but  who  have  been  vested  with  certain  rights 
subsequent  to  the  making  of  the  contract,  are  proper  parties 
in  a  suit  to  adjudicate  the  rights  of  the  parties  thereto.* 
Pending  a  suit  to  enforce  specific  performance,  the  respon- 
dent conveyed  the  premises  to  a  third  party,  and  a  decree 
was  rendered  for  such  performance,  without  bringing  in  the 
third  party.  Held,  that  the  decree  should  be  reversed  on 
appeal.*  And  it  has  been  held  that  if  A.  having  entered  in- 
to a  contract  for  purchase  with  B.,  afterward  contract  with 

'  Hill  V.  Gomme,  supra;  Lyons  v.  Blenkin,  Jac,  245  ;  Fry  on  Specif.  Per- 
form., 46. 

"^  Van  Dyne  v.  Vreeland,  11  N.  J.  Eq. ;  3  Stockt.,  370.  See  Coles  v.  Pilking- 
ton,  L.  R.  19,  Eq.  174. 

'Williams  v.  Leach,  28  Pa.  St.,  89;  Seager  v.  Burns,  4  Minn.,  141.  Specific 
performance  of  a  contract  to  convey  land  will  not  be  enforced  in  favor  of  a  part 
only  of  those  interested,  but  all  must  join  in  the  suit.  Slaughter  v.  Nash,  i  Litt. 
Ky.,  322  ;  Rochester  v.  Anderson,  6  lb.,  143 ;  Spier  v.  Robinson,  9  How.  Pr., 
325 ;  McCotter  v.  Lawrence,  6  Thomp.  and  Cook,  392  ;  4  Hun.,  107  ;  Lavender 
v.  Thomas,  18  Ga.,  668  ;  Craig  v.  Smith,  94  111.,  469;  Fleming  v.  Holt,  12  W. 
Va.,  143.  The  omission  of  indispensable  parties  to  a  bill,  is  error  compelling  a 
reversal  in  the  appellate  court,  though  the  objection  was  not  raised  in  the  court 
below.  Watson  v.  Oates,  58  Ala.,  647.  An  infant  may  maintain  a  bill  for 
specific  performance  where  a  party  contracting  in  the  infant's  behalf  was  com- 
petent, and  the  contract  was  made  on  full  consideration  which  has  been  paid. 
Guard  v.  Bradley,  7  Ind.,  60. 

^Curran  v.  Holyoke  Water-Power  Co.,  116  Mass.,  90. 

'Casady  v.  Scallen,  15  Iowa,  93. 


§   56.  ADVERSE    CLAIMANTS    TO    INTEREST.  79 

C,  that  B.  shall  convey  to  C,  of  which  B.  has  notice,  A. 
cannot  enforce  the  contract  against  B.  without  making  C. 
a  party/  So,  where  a  third  person  acquired  an  interest  in 
the  subject  matter  of  the  suit  previous  to  the  contract,  he 
may  be  regarded  as  in  some  sense  a  party,  and  may  be 
joined.  A  contract  for  the  purchase  of  certain  land  was 
entered  into  by  A.  with  B.,  A.  having  previously  agreed  to 
sell  the  land  to  C.  A.  and  C.  joined  in  a  suit  for  specific 
performance  against  B. ;  and  it  was  held  that  they  were  both 
proper  parties.' 

§  56.  Adverse  claimants  to  interest  of  vendor  or  vendee. 
— Persons  who  have  adverse  or  inconsistent  rights  in  the 
subject  matter  of  the  suit,  cannot  be  made  parties  plaintiff ;' 
nor  can  a  person  who  claims  adversely  to  the  vendor,  as  a 
rule  be  made  a  party  defendant  in  a  suit  by  the  purchaser  ;* 
though  it  seems  he  may  be  made  a  defendant  to  the  ven- 
dor's bill/  But  in  a  suit  for  the  specific  performance  of  a 
contract  for  sale,  it  was  held  that  one  who  claimed  title  to 
the  land  under  the  vendor  could  come  in  and  assert  his  right, 
as  a  decree  might  cast  a  cloud  upon  his  title."  Where  a 
purchaser  of  real  estate  at  a  sheriff's  sale  sued  to  enforce  a 
conveyance  from  the  sheriff,  and  the  former  owner  also 
claimed  a  right  to  redeem,  it  was  held  that  he  ought  to  be 
joined  as  a  party  defendant'     Where  at  an  auction  sale  it 

^  Anon  V.  Walforcl,  4  Russ.,  372.  If  A.  covenant  with  B.  to  convey  to  him  a 
tract  of  land,  and  B.  subsequently  requests  A.  to  convey  the  land  to  C.,  and  A. 
does  so,  it  is  a  satisfaction  of  the  covenant ;  and  if  the  purchase  money,  or  any 
part  of  it,  be  still  due  and  unpaid  from  B.  to  A.,  A.  may  have  his  action  against 
B.  to  recover  it.     Webster  v.  Tibbits,  19  Wis.,  438. 

^Nelthorpe  v.  Holgate,  i  Coll.  C.  C,  203. 

^  Fulham  v.  McCarthy,  i  House  of  Lds.,  703  ;  Padwick  v.  Piatt,  1 1  Beav.,  503  ; 
Grant  v.  Schoonhoven,  9  Paige  Ch.,  225. 

^  Tasker  v.  Small,  3  M.  and  Cr.,  63;  Dehogton  v.  Money,  L.  R.  2,  Ch.  164. 

^  See  Calvert  on  Parties,  329  ;  Evans  v.  Jackson,  8  Sim.,  217  ;  Sanders  v.  Rich- 
ards, 2  Coll.,  568.  Where  the  interests  of  the  vendee,  his  wife,  and  his  assignee 
in  trust  for  creditors,  are  conflicting,  the  vendor,  in  his  bill  for  specific  perform- 
ance, may  ask  to  have  the  respective  rights  of  the  claimants  determined.  Han- 
chett  V.  McQueen,  32  Mich.,  22. 

*  Carter  v.  Mills,  30  Miss.,  432. 

^  Crosby  v.  Davis,  9  Iowa,  98.  In  a  suit  for  the  specific  performance  of  a  con- 
tract to  convey  an  undivided  interest  in  land,  those  who  are  subject  to  the  com- 
plainant's equity,  and  hold  adversely  to  him,  are  necessary  parties.  Agard  v.  Va- 
lencia, 39  Ala.,  292. 


80  WHO    MAY    SUE    OR    BE    SUED.  §§   57,   58. 

was  arranged  that  a  portion  of  lot  A  should  be  sold  as  part 
of  lot  B,  it  was  held  in  a  suit  by  the  purchaser  of  lot  A 
for  specific  performance  according  to  the  particulars,  that 
the  purchaser  of  lot  B  was  a  necessary  party.' 

§  57.  Adverse  claimants  to  rights  of  both  parties  to  co7i- 
tract. — Strangers  to  the  contract  who  claim  adversely  to 
both  of  the  parties  to  it,  may  sometimes  be  made  defend- 
ants to  a  bill  for  specific  performance.  Thus,  where  the 
assignee  of  an  insolvent  sold  a  reversionary  interest  in  stock 
of  the  insolvent,  and  the  purchaser  was  served  with  notice 
not  to  pay  the  purchase  money  to  the  assignee,  by  a  person 
claiming  under  a  previous  assignment  made  by  the  insol- 
vent subsequent  to  his  insolvency,  a  bill  brought  by  the 
purchaser  against  the  assignee  and  the  adverse  claimant, 
praying  an  inquiry  into  the  right  of  the  latter,  was  sus- 
tained.' And  so  in  a  suit  for  specific  performance  by  the 
purchaser  from  a  voluntary  settler,  the  trustees  of  the  set- 
tlement, and  the  persons  beneficially  interested  under  it, 
may  be  made  defendants.'  Where,  however,  B.  agreed  to 
purchase  property  of  A.,  who  sold  it  under  a  power  of  sale 
contained  in  a  mortgage  to  A.  by  C,  as  trustee  and  exec- 
utor of  the  will  of  D.,  and,  after  acceptance  of  the  title,  and 
preparation  of  the  conveyance,  B.  received  notice  from 
unpaid  residuary  legatees  of  D.,  of  a  claim  by  them  to  the 
property  contracted  to  be  sold,  in  a  suit  by  A.  for  specific 
performance  of  the  agreement,  a  motion  by  B.  that  the 
residuary  legatees  might  be  added  as  defendants,  was  denied 
with  costs.* 

§  58.  Stranger  to  contract  not  a  necessary  party. — No 
liability  attaches  to  a  stranger  to  the  contract  in  respect  to 
its  specific  performance,  though  he  be  a  necessary  party  to 
the  conveyance ;    as  a   judgment   creditor,   mortgagee,   or 


'Mason  v.  Franklin,  i  Y.  and  C.  C.  C,  239.     See  Peacock  v.  Penson,  11 
Beav.,  355. 

•  Collett  V.  Hever,  i  Coll.  C.  C,  227.  Willets  v.  Busby,  5  Beav.,  193. 

*  Harry  v.  Davey,  L.  R.  2,  Ch.  D.,  721. 


§  58.    STRANGER  TO  CONTRACT  NOT  A  NECESSARY  PARTY.       8 1 

person  interested  in  the  equity  of  redemption/  Or  a  per- 
son who  has  joined  the  vendor  in  the  sale  in  respect  to 
other  property  under  conditions  as  to  laying  out  roads,  etc., 
affecting  the  whole  estate."  Or,  as  a  general  rule,  one  who 
claims  an  adverse  interest  which  was  vested  in  him  previous 
to  the  contract.'  S.  was  in  possession  of  land.  M.  claimed 
a  right  to  preempt  it,  and,  in  order  to  buy  him  off,  S.  agreed 
to  pay  him  sixteen  hundred  dollars.  To  secure  such  pay- 
ment, the  land  was  entered  in  the  name  of  H.  as  trustee, 
S.  advancing  the  m.oney  for  the  entry,  with  the  understand- 
ing that  H.  was  to  convey  when  said  amount  was  paid.  On 
a  bill  by  S.  to  compel  H.  to  convey  the  legal  title,  it  was 
held  that  M.  was  not  a  necessary  party,  as  the  transaction 
was  more  a  mortgage  than  a  bargain  and  sale,  and  that  a 
tender  of  the  money  in  court  was  sufficient. *  Where,  dur- 
ing the  pendency  of  a  suit  for  the  specific  performance  of 
a  contract  to  convey  property,  creditors  of  the  vendor  re- 
covered judgment  against  him,  and  sold  the  property  in 
question,  it  was  held  that  neither  such  creditors  nor  the 
purchasers  were  necessary  parties.'  It  seems,  however,  that 
judgment  creditors,  though  not  necessary,  may  be  proper 
parties.'     In  England,  a  steward  who  received    the  rents, 

'Tasker  v.  Small,  supra,  overruling  S.  C,  6  Sim.  625,  636;  Sober  v.  Kemp,  6 
Hare,  155  ;  Petre  v.  Duncombe,  7  lb.,  24;  Long  v.  Bowling,  33  Beav.,  585  ; 
ante,  %  56.  Some  of  the  exceptions  to  this  rule  will  be  noticed  hereafter.  The 
plaintiff  in  an  action  for  the  specific  performance  of  a  contract  to  convey  land 
cannot  bring  in  prior  mortgagees  of  this  and  other  land  for  the  purpose  of  ad- 
justing his  equities  with  respect  to  the  order  of  sale  upon  a  future  foreclosure, 
or  to  secure  the  application  of  the  purchase  money  to  be  paid  by  him  for  the 
satisfaction  of  the  mortgages.  Chapman  v.  West,  17  N.  Y.,  125.  But  prior 
mortgagees  of  real  estate  upon  which  securities  are  alleged  to  have  been  prom- 
ised to  secure  a  loan  of  money,  are  necessary  parties  in  an  action  to  compel 
specific  execution  of  such  securities.  The  fact  that  a  decree  is  asked  which 
will  operate  only  on  the  interest  of  the  party  promising  the  security,  is  not  a  suf- 
ficient answer  to  the  objection  that  the  mortgagees  are  not  made  parties  to  such 
bill.  Caldwell  v.  Taggart,  4  Pet.,  190.  A  court  of  equity  may  enforce  an  equi- 
table mortgage  against  others  than  the  contracting  party.  And  it  may  specifi- 
cally execute  a  contract  for  a  mortgage,  or  other  equitable  lien  against  creditors. 
Alexander  v.  Ghiselin,  5  Gill,  138. 

^Peacock  v.  Penson,  supra.  ^Delabere  v.  Norwood,  3  Swanst.,  144. 

^  Smith  v.  Sheldon,  65  111.,  219 ;  Affg.  44  lb.,  68. 

*  Secombe  v.  Steele,  20  How.,  94. 

"Lord  Leigh  v.  Lord  Ashburton,  1 1  Beav.,  470  ;  Seager  v.  Burns,  4  Minn.,  141. 

6 


82  WHO    MAY    SUE    OR    BE    SUED.  §  58. 

and  had  the  title  deeds  in  his  possession,  was  held  improp- 
erly joined.'  And  the  same  was  held  as  to  the  wife  of 
the  owner  of  the  estate  who  had  possession  of  the  deeds.' 
So,  in  a  suit  for  the  specific  performance  of  a  contract 
made  by  a  mortgagee  under  a  power  of  sale,  the  mortgagor 
need  not  be  made  a  party.'  A.  entered  into  a  contract  with 
a  railroad  company  for  the  sale  to  the  latter  of  an  estate, 
and  agreed  to  buy  out  the  tenant.  The  company  having 
taken  possession  before  the  payment  of  the  purchase 
money,  they  were  served  with  notices  not  to  trespass  on  the 
land,  both  by  A.  and  his  tenant,  A.  then  brought  a  suit 
for  specific  performance,  and  to  restrain  the  trespass,  to 
which  the  defendants  demurred  because  the  tenant  had  not 
been  made  a  party.  The  objection  was  held  well  taken  by 
the  vice-chancellor,  who  thought  as  the  tenant  w^as  affected 
by  the  injury,  he  ought  to  be  before  the  court.  But  the 
demurrer  was  overruled  by  the  lord  chancellor  on  the 
ground,  that  as  the  object  of  the  suit  was  specific  perform- 
ance, and  the  company  had  not  paid  the  purchase  money, 
they  might  be  restrained  from  entering,  whether  the  entry 
did  or  did  not  affect  the  tenant.*  But  when  the  suit  is  for 
the  recovery  of  the  possession,  as  well  as  for  specific  per- 
formance, a  person  in  possession  may  be  made  a  defendant, 
although  he  was  not  a  party  to  the  contract,'  And  where 
a  stranger  to  the  contract  claims  an  interest  in  the  purchase 
money,  he  may  be  made  a  party  to  the  suit.* 


'  Macnamara  v.  Williams,  6  Ves.,  143.        ''Muston  v.  Bradshavv,  10  Jur.,  402, 

^Corder  v.  Morgan,  18  Ves.,  344 ;  Clay  v.  Sharpe,  lb.  346,  n.  ;  Ford  v.  Heely, 
3  Jur.  N.  S.,  116. 

*  Robertson  v.  Gt.  Western  R.R.  Co.,  10  Sim.,  314;  S.  C,  i  Rail.  Cas.,  459. 

^Bishop  of  Winchester  v.  Midhants  R.R.  Co.,  L.  R.  5,  Eq.  17. 

"West  Midland  R.R,  Co,  v,  Nixon,  i  H,  &  M.,  176,  It  has  been  held  in  Mis- 
sissippi, that  the  assignee  of  a  note  for  the  purchase  money  may  maintain  a  bill 
against  the  vendor  and  vendee  and  their  respective  representatives,  to  enforce 
the  lien,  and  for  a  specific  performance  of  the  contract  of  sale,  and  that  it  is  no 
objection  to  the  bill  that  a  deed  was  not  tendered  ;  for  the  title  not  being  in 
the  complainant,  he  can  only  reap  the  benefit  of  his  equity  by  demanding  that 
the  parties  to  the  contract  of  sale  shall  be  held  to  the  performance  of  their  re- 
spective covenants.  Moon  v.  Wilkerson,  47  Miss.,  633 ;  Kimbrough  v.  Curtis, 
50  lb.,  117  ;  Boyce  v.  Francis,  56  lb.,  573. 


^§  59,   60.  VENDEES    OF    DISTINCT    PROPERTY.  83 

§  59.  Sub-purchaser  not  to  be  made  a  party. — A  pur- 
chaser from  the  vendee  is  not,  as  a  rule,  a  proper  party  to 
a  bill  filed  by  the  vendor  ; '  nor  the  original  purchaser, 
when  his  vendee  has  been  accepted  in  his  place  by  the  ven- 
dor/ Where  a  suit  was  brought  by  the  vendor  against 
both  the  purchaser  and  sub-purchaser,  it  was  dismissed  by 
the  vice-chancellor  as  against  the  latter,  though  specific  per- 
formance was  decreed  against  the  original  contractor  ;  and 
the  case  was  affirmed  on  appeal.'  Where  a  vendor  in  a  bill 
against  the  purchaser  for  the  specific  performance,  or  rescis- 
sion of  the  contract  of  sale,  made  a  sub-purchaser  a  defend- 
ant, and  the  latter  subsequently  filed  a  bill  against  the  pur- 
chaser for  specific  performance  of  his  agreement,  and  made 
the  original  vendor  a  defendant,  a  demurrer  by  the  original 
vendor  to  the  sub-purchaser's  bill  was  overruled,  on  the 
ground  that  the  sub-purchaser  had  been  made  a  defendant 
to  the  vendor's  bill,  and  treated  as  having  an  interest  in  the 
original  contract' 

§  60.  Vendees  of  distinct  property,  —  As  a  rule,  pur- 
chasers of  different  parcels  of  land  cannot  be  made  co-de- 
fendants.' Each  separate  contract  of  a  vendor  with  a 
purchaser,  may  be  the  subject  of  a  several  suit ;  and  if  a 
number  of  such  purchasers  are  joined  in  a  single  suit,  a  de- 
murrer will  lie  for  multifariousness.'  Where,  however,, 
there  were  several  sales  of  a  like  kind,  and  the  several  pur- 

'  Anon  V.  Walford,  4  Russ.,  372  ;  Corbus  v.  Teed,  69  111.,  205  ;  post,  §  68.  But 
a  third  person  to  whom  the  vendee  had  conveyed,  and  who  pron^ised  to  pay  the 
original  vendoV,  was  held  a  proper  defendant.  Campbell  v*.  Patterson,  58 
Ind.,  66. 

^  Holden  v.  Hayn,  i  Mer.,  47  ;  Hall  v.  Laver,  3  Y.  &  C,  Ex.  191.  See  Heming- 
way V.  Fernandes,  13  Sim.,  228 ;  post,  §  69. 

^Cutts  V.  Thody,  i  Coll.  C.  C,  223  ;  approved  and  fallowed  in  Chadvvick  v. 
Maden,  9  Hare,  188. 

*Fenwick  v.  Bulman,  L.  R.  9,  Eq.  165. 

®  Brookes  v.  Lord  Whitworth,  i  Mad.,  86  ;  Rayner  v.  Julian,  2  Dick.,  ^TT. 

^  Ibid.  Separate  purchasers  of  distinct  parcels  of  a  tract  of  land  cannot 
unite  in  a  bill  to  compel  specific  performance  by  the  former  owner  of  a  contract 
for  the  sale  of  the  land  to  a  third  person,  on  the  ground  that  the  prior  contract 
has  been  assigned  to  one  of  the  complainaats  for  the  benefit  of  all,  when  there 
is  nothing  in  the  bill  beyond  the  averment  to  show  that  the  purchase  or  transfer 
of  such  contract  was  for  the  benefit  of  alL    Wood  v.  Periy,  i  Barb.,  114. 


84  WHO    MAY    SUE    OR    BE    SUED.  §  61. 

chasers  were  made  plaintiffs  in  a  single  suit,  and  no  objec- 
tion was  raised  for  multifariousness,  specific  performance 
was  decreed.'  In  a  contract  for  the  sale,  in  separate  lots,  of 
leaseholds  held  under  an  entire  rent,  it  was  stipulated  that 
the  purchaser  of  each  lot  should  unite  in  the  conveyance  of 
the  other  lot  for  the  purpose  of  executing  covenants  of  in- 
demnity, and  it  was  held  that  the  purchaser  of  lot  number 
two  need  not  be  a  party  to  a  suit  by  the  vendor  for  the 
specific  performance  of  the  purchase  of  lot  number  one." 
But  where  an  administrator  coUusively  sold  separate  lots  to 
different  purchasers,  a  bill  making  all  of  them  defendants 
was  sustained.'  The  rule  is  sometimes  departed  from  to 
avoid  unnecessary  litigation.  A  suit  was  brought  by  a  pur- 
chaser against  trustees  for  sale,  for  the  specific  performance 
of  a  contract  for  the  sale  of  a  certain  lot.  The  defence  set 
up  was,  that  by  an  arrangement  to  which  the  plaintiff  was 
a  party,  a  portion  of  the  lot  as  originally  described  was 
taken  from  it  and  given  to  the  adjoining  lot.  The  bill  was 
amended  to  put  in  issue  this  averment,  but  without  making 
the  purchaser  of  the  adjoining  lot  a  defendant.  It  was 
held  that  he  ought  to  have  been  made  a  party,  as  otherwise 
the  vendors  would  be  exposed  to  another  suit  by  him." 

§  61.  Making  some  of  sevei^al parties. — In  a  proper  case, 
some,  of  several,  may  file  a  bill  for  specific  performance,  in 
behalf  of  all ;  as  the  directors  of  a  joint  stock  company  to 
enforce  an  agreement  for  a  lease,  without  joining  all  the 
shareholders.'     But   the   application   of  the  principle  that 

'Hargreaves  v.  Wright,  10  Hare,  Appx.,  56.  "  The  general  rule  is,  that  un- 
connected parties  may  join  in  bringing  a  bill  in  equity,  where  there  is  one  con- 
nected interest  among  them  all  centering  in  the  point  in  issue  in  the  cause." 
Shatter,  J.,  in  Owen  v.  Frink,  24  Cal.,  171.  Where  A.  enters  into  a  contract 
with  B.  to  sell  him  a  tract  of  land,  and  B.  assigns  to  two  or  more  persons  his 
equitable  title  to  distinct  portions  of  the  tract,  such  persons  may  unite  in  a  suit 
against  A.  for  a  specific  performance  of  the  contract.     Ibid. 

^Patterson  v.  Long,  5  Beav.,  186.  '  Fomiquet  v.  Forstall,  34  Miss.,  87. 

*  Mason  v.  Franklin,  i  Y.  &  C.  C.  C,  239. 

'  Taylor  V.  Salmon,  4  M.  &  Cr.,  134.  See  Van  Vechten  v.  Terr>',  2  Johns. 
Ch.,  197  ;  Denton  v.  Jackson,  lb.,  320 ;  Vandeville  v.  Riggs,  2  Pet.,  482  ;  Beatty 
V.  Kurtz,  lb.,  566  ;  Dana  v.  Brown,  i  J.  J.  Marsh,  304  ;  Robinson  v.  Smith,  3 
Paige  Ch.,  322.  An  election  was  pending  in  a  county  for  the  location  of  the 
county  buildings,  and  there  was  rivalr)'  between  different  localities  of  the  county 


§  62.  WHERE  VENDOR  IS  DECEASED.  85 

some  may  be  sued  in  behalf  of  all,  is  seldom  required  in 
suits  for  specific  performance  ;  and  it  cannot  easily  be  ap- 
plied. A  joint  stock  company  established  by  an  act  of 
Parliament  which  authorized  them  to  bring  actions  in  the 
name  of  their  treasurer,  purchased  an  estate  with  notice  of 
a  previous  contract  of  the  owner  to  grant  a  lease  of  part. 
A  bill  having  been  filed  by  the  proposed  lessee  for  the  spe- 
cific performance  of  the  contract,  against  the  treasurer  and 
directors,  without  making  the  other  proprietors  defendants, 
the  court  said  that  though  it  could  bind  the  interests  of 
parties  not  before  it,  it  could  not  compel  them  to  do  an 
act,  and  that  the  execution  of  the  lease  by  a  few  in  behalf 
of  all,  would  hardly  be  sufficient,  supposing  it  proper.  But 
though  specific  performance  could  not  be  decreed,  the 
court  enjoined  the  treasurer  from  disturbing  the  plaintiff's 
possession.' 

§  62.  Where  vendor  is  deceased. — In  general,  in  case  of 
the  death  of  a  party  to  the  contract,  the  obligation  to  per- 
form, and  the  right  to  insist  on  performance,  devolve  on 
the  representatives  of  the  deceased.  When  the  vendor  of 
land  dies  before  completion,  the  contract  may  be  enforced 
either  by  the  purchaser,"*  or  by  the  personal  representatives 
of  the  vendor,  who  are  the  ones  not  only  to  receive,  but  to 
settle  or  contest,  as  the  case  may  be,  the  amount  to  be  paid 
by  the  vendee  to  whom  their  discharge  or  receipt  is  a  neces- 
sary muniment,'     In  either  case,  the  heirs  or  devisees  must 

as  to  the  place  which  ought  to  be  selected.  R.  being  desirous  that  the  town  of 
T.  should  be  chosen,  gave  his  bond  to  the  Board  of  Police  of  the  county,  donat- 
ing ten  acres  of  land  in  T.  to  the  use  of  the  county,  provided  that  place  should 
be  designated.  T.  having  been  chosen  for  the  county  seat,  R.  refused  to  convey 
the  land.  It  was  held,  in  a  suit  brought  by  the  Board  of  Police  of  the  county, 
that  they  were  entitled  to  a  decree  for  specific  performance  against  R.  Reese  v. 
Board  of  Police  of  Lee  County,  49  Miss.,  639. 

'  Meux  V.  Maltby,  2  Swanst.,  277. 

^  Hinton  v.  Hinton,  i  Ves.  Sen.,  631  ;  Barker  v.  Hill,  2  Rep.  in  Ch.,  218. 

^  Baden  v.  Countess  of  Pembroke,  2  Vern.,  212  ;  Potter  v.  Ellice,  48  N.  Y., 
321  ;  McCarty  v.  Myers,  5  Hun.,  83.  Where  one  of  the  executors  having  left  the 
jurisdiction  was  superseded  by  order  of  the  surrogate,  and  the  other  executors 
sold  the  real  estate,  it  was  held  that  such  superseded  executor  was  not  a  neces- 
sary party  to  a  bill  for  specific  performance  against  the  purchaser,  although  it 
might  be  necessary  for  him  to  unite  with  the  complainants  in  a  deed  to  the  de- 
fendant.    Champlin  v.  Parish,  3  Edw.  Ch.,  581. 


S6  WHO    MAY    SUE    OR    BE    SUED.  §  62. 

be  made  parties;'  the  object  of  doing  so,  being  to  divest 
them  of  the  legal  title  which  immediately  vests  in  them 
upon  the  death  of  the  ancestor,  and  which  they  are  bound 
to  convey  to  the  vendee."  Infant,  or  adult  heirs,  may  be 
compelled  to  fulfil  a  contract  made  by  their  testator  or  in- 
testate to  convey  land,  to  the  extent  of  the  estate  they  de- 
rive from  him,  although  they  are  not  named  in  the  con- 
tract.' If  there  are  devisees,  or  if  the  executors  have 
power  to  sell,  the  heir  need  not  be  made  a  party,  unless 
there  is  reasonable  ground  to  deny  the  validity  of  the  will.* 
On  the  other  hand,  when  the  purchase  money  has  been 
paid  in  full,  the  contract  of  a  decedent  to  convey  real 
estate  may  be  enforced  against  the  heirs  alone,  although 
the  executor  or  administrator  may  also  be  made  a  party." 
An  executor  as  such,  who  is  also  a  devisee,  is  not  a  neces- 
sary party  in  a  suit  against  the  devisees  to  compel  perform- 
ance of  a  contract  by  their  testator  for  the  conveyance  of 

'  Roberts  v.  Marchant,  i  Hare,  547;  S.  C,  i  Phil.,  370;  Lacon  v.  Merlins,  3 
Atk.,  I  ;  Galton  v.  Emuss,  i  Coll.  C.  C.,  243  ;  Rutherford  v.  Green,  2  Ired.  Ch., 
121  ;  Jacobs  v.  Locke,  lb.,  286*;  Craig  v.  Johnson,  3  J.  J.  Marsh,  572  ;  Glaze  v. 
Drayton,  i  Dessaus  Eq.,  109  ;  Morgan  v.  Morgan,  2  Wheat.,  290 ;  Buck  v. 
Buck,  II  Paige  Ch.,  170;  Robinson  v.  McDonald,  11  Texas,  385;  Burger  v. 
Potter,  32  111.,  66 ;  Moore  v.  Murrah,  40  Ala.,  573  ;  Newton  v.  Swazey,  8  N.  H., 
9;  9  lb.,  385.     Contra,  Shannon  v.  Taylor,  16  Texas,  412. 

-Mitchell  V.  Shell,  49  Miss.,  118.  In  a  suit  by  the  executors  of  the  vendor  to 
foreclose  a  lien  for  the  purchase  money,  the  heir  or  devisee  must  be  made  a 
party  so  as  to  be  bound  by  the  judgment,  otherwise  the  purchaser  under  the 
judgment  might  not  get  a  good  title.  Thomson  v.  Smith,  63  N.  Y.,  301.  When 
the  vendor  has  died  without  making  a  conveyance,  and  his  administrator  brings 
a  suit  to  enforce  the  vendor's  lien  for  the  unpaid  purchase  monev,  the  heirs  of 
the  vendor  must  be  made  parties,  and  they  cannot  be  dispensed  with  by  tender- 
ing, either  in  the  pleadings  or  at  the  trial,  a  deed  from  such  heirs  to  the  vendee, 
unless  the  vendee  accepts  such  deed.      Leeper  v.  Lyon,  68  Mo.,  216. 

^  Hill  V.  Ressegieu,  17  Barb.,  162.  In  New  York,  it  is  provided  by  statute, 
that  the  "  supreme  court  or  a  county  court  shall  have  power  to  decree  and  com- 
pel a  specific  performance  by  any  infant  heir  or  other  person,  of  any  contract  or 
agreement  made  by  any  party  who  may  die  before  the  performance  thereof,  on 
the  petition  of  the  executors  or  administrators  of  the  estate  of  the  deceased,  or 
of  a  person  or  persons  interested  in  such  bargain,  contract,  or  agreement,"  etc. 
Rev.  Sts.  of  N.  Y.,  6th  Ed.,  p.  200,  Sec.  113. 

*  Colton  V.  Wilson,  3  P.  Wms.,  192  ;  Boyse  v.  Rossborough,  Kay,  71  ;  Bellamy 
V.  Liversidge,  Sug.,  464;  Spier  v.  Robinson,  9  How.  Pr.,  325  ;  Morrison  v.  Ar- 
nold, 19  Ves.,  673.     See  West  Hickory  Mining  Assoc,  v.  Reed,  80  Pa.  St.,  38. 

^  Judd  V.  Mosely,  30  Iowa,  423.  In  Iowa,  while  the  statute  makes  the  execu- 
tor or  administrator  a  proper  party  to  a  suit  to  enforce  specific  performance  of 
a  contract  of  a  deceased  vendor,  it  does  not  make  him  a  necessary  party.  Rev. 
Sts.  of  Iowa,  Sees.  2460,  2461. 


§  62.  WHERE    VENDOR    IS    DECEASED.  87 

land.'  If  the  personal  property  has  been  vested  in  trus- 
tees, by  order  of  court,  and  the  suit  is  brought  by  them, 
the  personal  representatives  are  still  necessary  parties.''  In 
a  bill  to  enforce  specific  execution  of  an  assignment  by  one 
of  the  distributees  of  an  estate  of  all  his  interest  in  the 
undivided  assets  in  the  hands  of  the  administrator,  all  of 
the  distributees  are  necessary  parties,'  When  the  plain- 
tiffs have  no  power  to  execute  such  a  conveyance  as  w^ill 
pass  the  vendor's  interest,  the  person  who  can  do  it  must 
also  be  made  a  party.'  If  the, widow  of  the  vendor  but 
for  the  contract  would  have  been  entitled,  she  must  be 
made  a  party.'  When  the  estate  has  been  devised  in  strict 
settlement,  the  trustees,  those  in  whom  the  first  estate  of 
inheritance  is  vested,  and  the  owner  of  the  intermediate, 
contingent,  or  executory  interest,  are  necessary  parties." 
All  the  co-heirs  of  a  vendor  deceased  should  join  in  a  bill 
for  the  specific  performance  of  a  contract  for  the  mutual 
sale  of  land ;  and  the  death  of  one  of  the  parties  should 
be  proved  to  excuse  his  omission  as  a  party  to  the  bill.'  But 
heirs  who  have  conveyed  their  interests  in  land  contracted 
by  their  ancestor,  need  not  be  joined  in  a  suit  to  compel 
specific  performance  by  heirs  who  have  not  conveyed.'  So, 
heirs  who  have  consented  that  the  contract  may  be  en- 
forced, and  who  have  voluntarily  vested  the  title  in  the  ad- 
ministratrix, need  not  be  made  parties."  When  the  ex- 
ecutors of  a  deceased  vendor  decline  to  enforce  the 
performance  of  a  contract  made  by  him  in  his  lifetime, 
the  suit  may  be  brought  by  the  creditors  of  his  estate 
against  the  executors,  heirs,  and  purchaser.'" 

'  Watson  V.  Mohan,  20  Ind.,  223.  ^Cave  v.  Cork,  2  Y.  &  C.  C.  C,  130. 

"Bogan  V.  Camp.,  30  Ala.,  276. 

*  Roberts  v.  Marchant,  supra  ;  Fowler  v.  Lightburn,  1 1  Ir.  Ch.,  495  ;  Morgan 
V.  Morgan,  supra  ;  Story's  Eq.  PI.,  Sees.  160,  177. 

^Hinton  v.  Hinton,  supra  ;  Brown  v.  Raindle,  3  Ves.,  256. 

^Hopkins  v.  Hopkins,  i  Atk.,  590  ;  Gore  v.  Stackpool,  i  Dow,  18,  31  ;  i  Danl. 
Ch.  Pr.,  4th  Am.  Ed.,  226,  265. 

^Morgan  v.  Morgan,  2  Wheat.,  290.  ® Barnard  v.  Macy,  11  Ind.,  536. 

^Schoeppel  v.  Hopper,  40  Barb.,  425. 

'"  I  Mad.  Ch.,  169.     See  Johnson  v.  Legard,  T,  &  R.,  290. 


88  WHO    MAY    SUE    OR    BE    SUED.  §  6;^. 

§  63.  Where  vendee  has  died. — In  case  of  the  death  of 
the  purchaser  before  completion,  performance  of  the  con- 
tract may  be  enforced  either  by  or  against  the  vendor  or  by 
the  heirs  or  devisees  of  the  purchaser ;  the  heirs  or  devisees 
being  the  persons  entitled  to  have  the  land  conveyed  to 
them,  and  to  insist  on  a  proper  inquiry  into  the  title.'  D. 
contracted  with  W.  for  the  sale  of  land.  W.  assigned  to 
S.,  who  afterward  died.  Held  that  in  a  suit  to  compel 
specific  performance,  the  complaint  should  be  filed  by  the 
heirs  of  S.,  and  not  by  his  administrator.'  The  heirs  of  an 
intestate  are  the  proper  parties  to  bring  an  equitable  action 
to  obtain  from  the  defendants  a  deed  of  land  of  which 
they  are  alleged  to  have  fraudulently  obtained  the  legal 
title,  contrary  to  the  condition  of  a  bond  to  their  intes- 
tate.' But  the  heir  or  devisee  of  the  purchaser  is  not  en- 
titled to  specific  performance  unless  the  contract  is  such  as 
might  have  been  enforced  against  the  testator.  The  pro- 
priety of  this  principle  is  obvious ;  for  otherwise,  the  per- 
sonal estate  would  be  taken  to  purchase  for  the  heir  or 
devisee  what  the  testator  was  not  bound  to  purchase,  and 
perhaps  would  not  have  purchased.' '  Of  course  the  con- 
tract will  not  be  enforced  in  favor  of  the  heirs  after  the 
personal  representatives  have  rescinded  the  contract  and  re- 
covered back  the  money  paid  by  the  deceased  vendee  in  his 
lifetime.*  If  the  land  has  not  been  paid  for,  the  executors 
or  administrators  of  the  vendee  are  necessary  parties ;  the 
purchase  money  being  primarily  payable  out  of  the  per- 
sonal property.*     When  the  purchaser  dies  during  the  pen- 

'  Townsend  v.  Champernowne,  9  Price,  130;  Lord  v.  Underdunck,  i  Sandf. 
Ch.,  46  ;  Miller  v.  Henderson,  10  N.  J.  Eq.,  320.  In  a  suit  for  the  specific  perform- 
ance of  a  contract  for  the  conveyance  of  land  alleged  to  have  been  purchased 
by  partners  for  the  puq)Oses  of  the  firm,  the  heirs  of  a  deceased  partner  must 
be  made  parties.     Knott  v.  Stephens,  3  Oregon,  269. 

^  House  V.  Dexter,  9  Mich.,  246.  ^Webster  v.  Tibbitts,  19  Wise,  438. 

^  Broome  v.  Monck,  10  Ves.,  597  ;  Savage  v.  Carroll,  i  B.  &  B.,  265,  281  ;  Col- 
lier V.  Jenkins,  You.,  295. 

'^Pennock  v.  Freeman,  i  Watts,  401. 

"Cocke  V.  Evans,  9  Yerg.,  287  ;  Peters  v.  Jones,  35  Iowa,  512;  r  Danl.,  Ch. 
Pr.,  4th  Am.  Ed.,  285  ;  Story's  Eq.  PI.,  Sec.  177.  See  Holt  v.  Holt,  2  Vern., 
322;  Buckmaster  v.  Harrop,  7  Ves.,  341,  S.  C.  13,  lb.  456  ;    Harding  v.  Handy, 


§  64.   PURCHASER  WITH  NOTICE  OF  PREVIOUS  CONTRACT.   89 

dency  of  a  suit  by  the  vendor  against  him,  the  court,  on 
the  appHcation  of  the  real  and  personal  representatives, 
may  order  the  plaintiff  to  revive,  or  in  default  thereof,  that 
his  bill  shall  be  dismissed.'  When  both  of  the  parties  to 
the  contract  are  deceased,  and  a  suit  for  specific  perform- 
ance is  brought  by  the  administrator  of  the  vendor,  the 
administrator  and  heirs  of  the  vendee,  and  all  who  derive 
title  under  them,  or  are  interested  in  the  contract,  are 
necessary  parties." 

§  64.  Purchaser  zvith  miotic e  of  previous  contract. — An 
alienee  of  the  vendor,  and  persons  claiming  an  interest  in 
the  property  obtained  from  the  vendor  after  the  date  of  the 
contract  with  notice  of  the  vendee's  rights,  are  necessary 
defendants  at  the  suit  of  the  purchaser.'  One  who  is  right- 
fully in  possession  of  a  corporeal  hereditament,  is  entitled 
to  presume  knowledge  of  such  possession  on  the  part  of 
any  person  negotiating  for  an  interest  in  the  property  in- 
consistent with  the  title  by  which  the  possession  is  held. 
A  person  who  knows  of  such  possession  will  not  be  per- 
mitted to  deny  that  he  has  notice  of  the  title  under  which 
the  possession  is  enjoyed  ;  and,  for  the  purpose  of  notice, 

II  Wheat.,  104.  The  administrator  of  a  deceased  vendee  is  a  necessar}'  party 
in  a  suit  by  the  heirs  of  the  vendee  to  compel  specific  performance  of  a  parol 
■  contract  against  a  subsequent  purchaser  with  notice,  where  the  personal  estate 
of  the  deceased  is  small,  the  estate  still  unsettled,  and  the  debts  of  the  deceased 
vendee  not  all  paid.  The  administrator  has  an  equitable  interest  in  the  real 
estate  on  behalf  of  the  creditors  greater  than  that  of  the  heirs.  The  fact  that 
the  heirs  are  also  bona  fide  creditors  of  the  vendee,  cannot  aid  the  defect  in  the 
bill  for  want  of  parties.     Downing  v.  Risley,  15  N.  J.  Eq.,  93. 

1  Norton  v.  White,  2  De  G.  M.  &  G.,  678. 

^  Anshutz's  Appeal,  34  Pa.  St.,  375.  Where  the  purchaser  has  died,  and  no 
administrator  of  his  estate  has  been  appointed,  the  vendor  may  maintain  a  suit 
for  specific  performance  against  the  heirs  of  the  purchaser.  Jackson  v.  McCoy, 
56  Miss.,  78. 

^  Echliff  v.  Baldwin,  16  Ves.,  267  ;  Hersey  v.  Giblett,  18  Beav.,  174  ;  Case  v. 
James,  29  lb.,  512  ;  Bishop  of  Winchester  v.  Midhants  R.R.  Co.,  L.  R.  5,  Eq. 
17  ;  Barnes  v.  Wood,  8  lb..  424  ;  Potter  v.  Saunders,  6  Hare,  i  ;  Champion  v. 
Brown,  6  Johns.  Ch.,  398  ;  Langdon  v.  Woolfolk,  2  B.  Mon.,  105  ;  Castle  v. 
Wilkinson,  L.  R.  5,  Ch.  536  ;  Caldwell  v.  Carrington,  9  Pet.,  86 ;  Hoagland  v. 
Latourett,  I  Green  Ch.,  254;  Glover  v.  Fisher,  11  II!.,  666  ;  Wright  v.  Dame, 
22  Pick.,  55  ;  Clark  v.  Flint,  lb.,  231  ;  Baldwin  v.  Lowe,  22  Iowa,  367  ;  Snow- 
man V.  Harford,  57  Me.,  397  ;  Walker  v.  Cox,  25  Ind.,  257  ;  Patten  v.  Moore, 
32  N.  H.,  38? ;  Fullerton  v.  McCurdy,  4  Lansing,  132;  Stone  v.  Buckner,  12 
Sm.  &  Marsh,  73 ;  Morris  v.  Hoyt,  1 1  Mich.,  9.  See  Davis  v.  Henry,  4  W.  Va., 
571  ;  Powell  V.  Young,  45  Md.,  414 ;  post,  §  75. 


90  WHO    MAY    SUE    OR    BE    SUED.  §  65, 

the  possession  need  not  be  unceasingly  and  actively  as- 
serted. Where  individuals,  having  a  contract  for  the  pur- 
chase of  mines,  took  possession,  a  subsequent  vendee  of 
the  land  was  held  to  have  bought  with  notice  of  the  con- 
tract and  to  be  bound  by  it,  notwithstanding  it  was  shown 
that  mining  operations  had  been  suspended  previous  to  the 
date  of  the  purchase.'  The  principle  of  notice  is  appli- 
cable to  all  contracts  binding  the  land  in  equity,  as  well  as 
to  contracts  for  sale." 

§  65.  Ill  case  of  sale  of  trust  estate. — When  a  contract  is 
made  by  a  trustee  in  behalf  of  another  person,  and  a  suit 
for  specific  performance  of  the  agreement  is  brought  by  the 
latter,  the  trustee  is  a  necessary  party  ;  as  otherwise,  an- 
other suit  might  have  to  be  brought  against  him.'  Where 
trustees  brought  a  suit  to  compel  the  specific  performance 
of  the  sale  of  the  trust  estate,  it  was  held  that  an  objection 
by  the  purchaser  that  another  trustee  who  had  been  re- 
moved, and  who  did  not  join  in  the  sale,  was  not  a  party, 
was  not  w^ell  taken  ;  but  that  the  purchaser  might  insist 
upon  the  execution  of  a  deed  by  such  trustee.'  A  cestui 
qtie  trust  is  not  a  proper  party  to  a  bill  filed  by  the  trustee 
to  enforce  specific  performance  of  a  contract  to  convey 
land  ;  and  it  is  no  defence  to  the  bill  that  the  money  paid 
on  the  contract  was  a  trust  fund.^  If  the  estate  is  held  by 
trustees  to  sell  and  pay  over  the  proceeds  to  persons  named, 
with  power  to  give  receipts,  the  cestui  que  tritst  need  not 
be  made  a  party  to  the  suit.'  But  although  cestuis  que  tries t 
are  not,  as  a  rule,  necessary  parties  to  suits  by  or  against 
trustees,  yet  it  is  otherwise,  where  the  trustees  are  of  them- 
selves unable  to  make  a  valid  contract,  or  where  the  cestuis 
que  trust  are  entitled  to  be  heard  against  the  right  of  the 


'  Holmes  v.  Powell,  8  De  G.  M.  &  G.,  572.  '^  Furnival  v.  Crew,  3  Atk.,  87. 

^  Cope  V.  Parry,  2  J.  and  W.,  538  ;  Cooke  v.  Cooke,  2  Vern.,  36  ;  White  v. 
Watkins,  23  Mo.,  423. 

^  Champlin  v.  Parish,  3  Edw.  Ch.,  581.  ^  Gibbs  v.  Blackwell,  37  111.,  191. 

'  Wakeman  v.  Duchess  of  Rutland,  3  Ves.,  233  ;  Beales  v.  Lord  Rokeby,  2 
Mad.,  227  ;  Potts  v.  Thames  Haven  Co.,  15  Jur.,  1004. 


§  66.  HUSBAND    AND    WIFE.  9 1 

trustees  to  exercise  the  power  under  which  the  contract  was 
made.'  If  a  bill  be  filed  by  the  cestui  que  trust  for  the 
specific  performance  of  a  contract  made  by  a  third  person 
with  the  trustee  for  the  purchase  of  real  estate,  he  may 
make  the  trustee,  purchaser,  and  grantor,  in  the  deed  of 
trust,  defendants  ;  or  the  trustee  may  be  made  a  party  plain- 
tiff. "^  Where  the  legal  title  of  corporation  lands  is  held  by 
a  trustee,  in  an  action  to  enforce  specific  performance  of  a 
contract  with  such  corporation  in  relation  thereto,  the  trus- 
tee should  be  made  a  co-defendant.'  If  a  person  conveys 
property  in  trust,  for  a  certain  purpose,  he  retains  such  an 
interest  therein  as  to  entitle  him  to  insist  on  a  specific  exe- 
cution of  the  trust.*  In  a  suit  for  specific  performance  by 
the  purchaser  of  land  at  a  trustee's  sale,  the  grantor  in  the 
deed  of  trust,  who  is  entitled  to  the  surplus  after  the  pay- 
ment of  the  debt  secured  by  the  trust,  is  a  necessary  party." 
When  one  conveys  the  real  estate  in  mere  execution  of  a 
trust,  it  is  unnecessary  to  make  his  representatives  parties 
to  the  suit."  Where  a  trustee  was  vested  with  the  legal 
title  for  the  mere  purpose  of  securing  the  payment  of  a  sum 
due  to  a  third  person,  it  was  held,  in  a  suit  by  the  equi- 
table owner  to  redeem  and  for  a  conveyance  of  the  legal 
title  to  him,  that  such  third  person  was  not  a  necessary 
party.' 

§  66,  Husband  and  wife. — Where  the  husband  has  en- 
tered into  a  contract  concerning  the  real  estate  of  his  wife, 
both  should  be  made  parties  to  a  suit  for  specific  perform- 


'  Evans  v.  Jackson,  8  Sim.,  217;  Saunders  v.  Richards,  i  Coll.  C.  C,  568. 
Where  a  husband,  at  his  wife's  request,  entered  into  a  written  contract  for  the 
sale  of  land  held  by  him  in  trust  for  her,  it  was  held  that  it  was  not  error  to  de- 
cree that  he  convey  the  land  free  from  her  claim  for  dower,  although  she  op- 
posed the  decree.  Her  right  was  a  mere  equity,  and  it  was  unnecessaiy  for  her 
to  join.     Rostetter  v.  Grant,  18  Ohio  St.,  126. 

"^  Fleming  v.  Holt.  12  W.  Va.,  143.  '  Morrow  v.  Lawrence,  7  Wis.,  574. 

''  Chapman  v.  Wilbur,  4  Oregon,  362.  But  where  a  trustee  diverts  the  prop- 
erty from  the  purpose  for  which  it  was  granted,  it  will  not  thereby  be  forfeited 
or  revert  to  the  donor. 

'  White  v,  Watkins,  stcpra.  °  Downing  v.  Risley,  15  N.  J.  Eq.,  93. 

'  Smith  V.  Sheldon,  65  111.,  219. 


92  WHO    MAY    SUE    OR    BE    SUED.   "*  §  66. 

ance.'  On  the  other  hand,  it  has  been  held  that  a  suit  to 
enforce  an  agreement  to  convey  real  estate  to  a  married 
woman  in  which  the  husband  is  not  named,  may  be  brought 
by  the  wife  alone.'  Where  a  husband  and  wife  filed  a  bill 
for  the  specific  performance  of  a  contract  to  convey  certain 
land  to  the  wife,  and  pending  the  suit  the  wife  died,  it  was 
held  that  as  her  children  were  not  joined,  or  an  order  made 
to  proceed  in  the  name  of  the  survivors,  a  decree  could  not 
be  rendered  on  the  merits.'  The  wife,  who  is  a  tenant  for 
years,  may,  with  her  husband,  maintain  a  suit  for  specific 
performance  against  the  lessor."  A  wife  cannot  be  com- 
pelled to  join  in  a  conveyance  of  land  when  she  was  not  a 
party  to  the  contract  for  its  sale  ;  and  she  is  not  a  proper 
party  in  a  suit  by  the  purchaser  for  specific  performance.' 
Where  a  husband  contracted  for  the  sale  of  his  wife's  land, 
describing  it  as  his,  it  was  held  that  the  wife,  after  his  death, 
could  not  enforce  specific  performance  by  the  purchaser  for 
her  own  benefit.^  In  a  suit  to  compel  specific  performance 
of  a  contract  for  the  sale  of  real  estate  held  as  stock  of  a 
partnership,  the  wife  of  a  surviving  partner  need  not  be 
made  a  party  ;  as  she  has  no  vested  interest  in  the  land.'  A 
suit  may  be  brought  to  charge  the  separate  estate  of  a  mar- 
ried  woman    under   her   contract  for   purchase  f  but  not 

'  Wheeler  v.  Newton,  2  Eq.  Cas.  Abr.,  44;  Calvert  on  Parties,  269.  Where  a 
husband  and  wife  contracted  in  writing  to  sell  land  of  the  wife,  and  the  separate 
acknowledgment  of  the  wife  was  taken,  it  was  held  that  a  bill  would  lie  for 
specific  performance.  Dankel  v.  Hunter,  61  Pa.  St.,  382.  Contra,  Frarey  v. 
Wheeler,  4  Oregon,  190.  In  a  bill  to  compel  a  conveyance,  where  the  complain- 
ants have  derived  their  title  in  part  through  a  married  woman,  whose  convey- 
ance is  void,  she  should  be  made  a  party  defendant.  Stansberry  v.  Pope,  4  Bibb. 
Ky.,  492. 

^  Stampoffski  v.  Hooper,  75  111.,  241.      See  Harper  v.  Whitehead,  33  Ga.,  138. 

3  Hand  v.  Jacobus,  19  N.  J.  Eq.,  70.  ■*  Bain  v.  Bickett,  i  Cine,  161. 

'  Richmond  v.  Robinson,  12  Mich.,  193.     '  Hoover  v.  Calhoun,  16  Gratt..  109. 

'  Galbraith  v.  Gedge,  16  B.  Mon.,  631. 

"  Hulme  V.  Tenant,  i  Bro.  C.  C,  16  ;  Aylett  v.  Ashton,  i  M.  and  Cr.,  105  ; 
Knowles  v.  McCamly,  10  Paige  Ch.,  342;  Hinckley  v.  Smith,  51  N.  Y.,  21.  See 
Berry  v.  Co.x,  8  Gill,  466  ;  Ballin  v.  Dillaye,  37  N.  Y.,  35.  In  New  York  "any 
married  woman  possessed  of  real  estate  as  her  separate  property,  may  bargain, 
sell,  and  convey  such  property,  and  enter  into  any  contract  in  reference  to  the 
same,  with  like  effect  in  all  respects  as  if  she  were  unmarried,  and  she  may,  in 
like  manner,  enter  into  any  such  covenant  or  covenants  for  title  as  are  usual  in 


§  66.  ^.HUSBAND  and;  wife.  93 

against  her  personally/  Her  engagement,  however,  must 
have  been  made  with  reference  to,  and  upon  the  faith  and 
credit  of,  her  separate  estate/  Where  a  married  woman, 
who  had  property  of  her  own,  and  lived  apart  from  her  hus- 
band, agreed  to  take  a  lease,  it  was  held  that  she  was  bound 
by  the  contract  to  the  extent  of  her  separate  property,  and 
might  be  compelled  to  pay  the  rent/  A  contract  founded 
upon  proper  consideration,  by  which  the  husband  and  wife 
bind  themselves  to  execute  a  mortgage  of  the  separate  es- 
tate of  the  wife,  will  be  enforced  by  a  court  of  equity,  and 
such  estate  held  liable  for  the  debt  intended  to  be  secured/ 
When  a  married  woman,  having  a  power  of  appointment, 

conveyances  of  real  estate,  which  covenants  shall  be  obligatory  to  bind  her  sepa- 
rate property  in  case  the  same,  or  any  of  them,  be  broken."  R.  S.  of  N.  Y.,  6th 
Ed.,  Vol.  III.,  p.  i6o,  §82. 

'  Francis  v.  Wigzel,  i  Mad.,  258. 

2  Johnson  v.  Gummins,  16  N.  J.  Eq.,  97;  Harrison  v.  Stewart,  18  lb.,  451  ; 
Hinckley  v.  Smith,  supra.  In  New  York  a  married  woman  may  purchase  prop- 
erty upon  credit,  and  bind  herself  by  an  executory  contract  to  pay  the  considera- 
tion, and  her  bond,  note,  or  other  engagement  given  to  secure  the  purchase 
price  of  property  acquired  and  held  for  her  separate  use,  may  be  enforced  against 
her  in  the  same  manner  and  to  the  same  extent  as  if  she  were  a  feme  sole,  aiT^ 
her  liability  does  not  depend  upon  the  existence  of  special  circumstances,  but  is 
governed  by  the  ordinary  rules  which  determine  the  liability  of  persons  sui  juris 
upon  their  contracts.  Cashman  v.  Henry,  75  N.  Y.,  103,  reversing  S.  C,  44  N. 
Y.  Supr.  Ct.,  93.  In  Iowa  "  the  wife  is  clothed  by  statute  with  the  same  prop- 
erty rights,  and  charged  with  the  same  liability,  as  the  husband.  Indeed,  it  can- 
not be  said  that  as  to  her  property  she  is  deprived  of  any  rights  which  the  hus- 
band enjoys  that  relate  to  his,  or  that  any  remedy  is  denied  her  or  liability 
removed  from  her  which  are  possessed  by,  or  imposed  upon,  the  husband.  She 
can  control  her  own  property,  vindicate  her  individual  rights,  and  bind  herself 
by  contract  as  fully  and  to  the  same  extent  as  her  husband."  Spafford  v.  War- 
ren, 47  Iowa,  47.  In  South  Carolina  the  provisions  of  the  General  Statutes,  p. 
482,  that  the  husband  shall  not  be  liable  for  the  debts  contracted  by  the  wife, 
except  for  her  necessary  support,  places  the  husband  in  the  position  of  a  formal, 
and  not  a  substantial  party,  to  suits  against  the  wife  on  her  individual  contracts 
other  than  for  her  necessary  support.  Ross  v,  Linder,  12  S.  C.,  592.  For  many 
purposes,  equity  treats  husband  and  wife  as  distinct  persons,  capable  of  contract- 
ing with  each  other ;  and  their  contracts  will  sometimes  be  enforced,  even  as 
against  the  creditors  of  the  husband.  Campbell  v.  Galbreath,  12  Bush.  Ky., 
459- 

^  Gaston  v.  Frankum,  2  De  G.  and  S.,  561. 

^  Hall  V.  Hume,  37  Md.,  500;  Stead  v.  Nelson,  2  Beav.,  245.  When  a  married 
woman  buys  real  estate,  and  gives  her  promissory  notes  for  the  purchase  money, 
secured  by  a  mortgage  on  the  property  purchased,  the  vendor  can  hold  it  in 
equity  for  the  purchase  money.  Such  a  lien  can  be  enforced  by  a  suit  to  sub- 
ject the  property  to  the  debt,  although  no  personal  judgment  can  be  given  upon 
the  notes.  Pemberton  v.  Johnson,  46  Mo.,  342  ;  Glass  v.  Warwick,  40  Pa.  St., 
140,  And  see  Brame  v.  McGee,  46  Ala.,  170;  Phillips  v.  Graves,  20  Ohio  St., 
371. 


94  WHO    MAY    SUE    OR    BE    SUED.  §  6']. 

or  an  estate  settled  to  her  separate  use,  with  no  restraint  on 
anticipation,  makes  such  an  agreement  as  would  bind  her  if 
she  were  -difctne  sole,  the  estate  is  bound.'  The  omission  of 
mere  formalities  in  the  exercise  of  a  power — as  where  a  mar- 
ried woman,  who  has  power  to  appoint  by  deed,  enters  into 
a  contract  not  under  seal — may  be  supplied,  and  specific 
performance  be  decreed ;'  but  not  if  the  formalities  are  of 
the  substance  of  the  power,  or  are  intended  for  her  protec- 
tion.' Specific  performance  of  the  contract  of  a  married 
woman,  entered  into  even  with  the  concurrence  of  her  hus- 
band, for  the  sale  of  her  real  estate  not  settled  to  her  sepa- 
rate use,  or  appointment,  other  than  her  chattels  real,  cannot 
be  decreed  against  her."  Although  the  contract  of  a  mar- 
ried woman  to  convey  her  real  property  entered  into  during 
coverture,  be  incapable  of  specific  enforcement,  yet  if  she 
has  received  money  from  the  vendee  on  the  contract,  or  has 
consented  that  the  vendee  may  take  possession  of  the  prem- 
ises, and  he  makes  permanent  improvements  thereon,  the 
iponey  so  advanced,  and  the  value  of  such  improvements, 
less  the  value  of  the  use  of  the  premises,  will  be  decreed  to 
be  a  charge  upon  the  land,  until  paid.'  Where  the  separate 
real  estate  of  a  married  woman  is  exchanged  for  other  land, 
under  a  contract  that  the  conveyance  shall  be  made  to  her, 
and  the  deed  is  taken  in  the  name  of  her  husband  without 
her  consent,  she  has  an  equity  to  have  the  contract  or  trust 
enforced  against  the  heirs  of  her  husband.' 

§  67.  In  case  of  substituted  contract. — When  a  new  con- 

'  Grigby  v.  Cox,  i  Ves.  Sen.,  518;  Daniel  v.  Adams,  Amb.,  495  ;  Martin  v. 
Mitchell,  2  Jac.  and  W.,  425  ;  Nantes  v.  Corrock,  9  Ves.,  189  ;  Heather  v.  O'Neil, 
2  De  G.  and  J.,  417  ;  Francis  v.  Wigzell,  i  Mad.,  258.  In  Massachusetts,  under 
the  statute,  Genl.  Sts.,  Ch.  108,  §  3,  providing  that  "  a  married  woman  may  bar- 
gain, sell,  or  convey  her  separate  real  or  personal  property,  and  enter  into  con- 
tracts in  reference  to  the  same,"  she  may,  with  the  written  assent  of  her  husband, 
contract  for  the  sale  of  her  real  estate,  and  specific  performance  may  be  enforced. 
Baker  v.  Hathaway,  5  Allen,  103;  Townsly  v.  Chapin,  12  lb.,  479. 

-  Dowell  V.  Dew,  l  Y.  and  C.  C.  C.,  345.     '  Phillips  v.  Edwards,  33  Beav.,  440. 

*  Aylett  V.  Ashton,  i  M.  and  Cr.,  105.  See  NichoU  v.  Jones,  L.  R.  3,  Eq.  696  ; 
Avery  v.  Griffin,  6  lb.,  606. 

*  Frarey  v.  Wheeler,  4  Oregon,  190. 

"  Davis  V.  Davis,  43  Ind.,  561  ;  Dayton  v.  Fisher,  34  lb.,  336. 


§  6S.  RIGHT    OF    ASSIGNEE    TO    MAINTAIN    SUITS.  95 

tract  is  substituted  for  the  original  one,  by  the  introduction 
of  a  new  person,  as  the  original  contractor  is  no  longer  a 
party  to  the  contract,  he  ceases  to  be  a  proper  party  to  a 
suit,  which  must  be  prosecuted  between  the  parties  to  the 
new  contract.  If,  for  instance,  A.  contracts  to  sell  to  B., 
and,  before  completion,  B.  contracts  to  sell  to  C,  and  A. 
deals  with  C.  as  the  purchaser,  this  may  constitute  a  new 
contract ;  and  even  where  it  does  not  strictly  amount  to 
that,  B.  may  be  an  unnecessary  party  to  the  suit.'  A  rail- 
road company  having  entered  into  a  contract  with  a  land- 
owner, during  the  proceedings  before  Parliament,  agreed 
with  a  rival  company  to  refer  the  two  bills  to  certain  per- 
sons, and  that  the  successful  company  should  assume  all  the 
engagements  of  the  other.  The  company  which  had  con- 
tracted with  the  land-owner  withdrew  its  bill  pursuant  to 
the  award,  and  it  was  held  that  the  land-owner  could  en- 
force the  contract  against  the  other  company  that  had 
adopted  it.' 

§  68.  Right  of  assignee  to  maintain  stiits. — When  an 
agreement  has  been  assigned,  the  vendor  cannot  compel  the 
assignee  to  perform,  there  being  no  contract  between  them. 
Payments  made  by  the  assignee  will  make  no  difference  in 
this  respect.  In  such  case  the  vendor  must  enforce  the  con- 
tract against  the  original  vendee.^  But  the  assignee  may 
maintain  a  suit  for  specific  performance  against  the  vendor, 
making  the  assignor  a  party,'  it  being  a  rule,  that  where  the 

*  Holden  v.  Hayn,  i  Mer„  47  ;  Hall  v.  Laver,  3  Y.  and  C.  Ex.,  191  ;  Shaw  v. 
Fisher,  5  De  G.  M.  and  G.,  596. 

^  Stanley  v.  Chester  and  Birkenhead  R.R.  Co.,  9  Sim,,  264;  3  M.  and  K.,  773. 

°  Corbus  V.  Teed,  69  111.,  205  ;  ante,  §  59.  The  above  section  of  course  as- 
sumes that  the  contract  is  capable  of  assignment,  which  will  not  be  the  case,  if 
it  concerns  the  learning,  skill,  solvency,  or  other  personal  qualification  of  one  of 
the  parties,  or  is  aganist  public  policy.     Post,  §§  72-74. 

■*  Hanna  v.  Wilson,  3  Gratt.,  293.  "  Where  the  assignment  is  absolute  and 
unconditional,  leaving  no  equitable  interest  whatever  in  the  assignor,  and  the  ex- 
tent and  validity  of  the  assignment  are  not  doubted  or  denied,  and  there  is  no 
remaining  hability  to  be  affected  by  the  decree,  it  is  not  necessary  to  make  the 
latter  a  party.  At  most,  he  is  merely  a  nominal  or  formal  party  in  such  a  case." 
Story's  Eq.  Pl„  Sec.  153.  See  Brace  v..  Harrington,  2  Atk.,  235  ;  Trecothick  v. 
Austin,  4  Mason,  41  ;  Whitney  v.  McKinney,  7  Johns.  Ch.,  144;  Miller  v.  Bear, 
3  Paige  Ch.,  4.67;  Colerick  v.  Hooper,  3  Ind.,  316;  Miller  v.  Whittier,  32  Me., 


96  WHO    MAY    SUE    OR    BE    SUED.  §  6S. 

original  parties  to  a  contract  would  be  entitled  to  a  decree 
for  specific  performance,  all  persons  claiming  under  them 
have  the  same  rights,  provided  there  are  no  intervening 
equities  ; '  as  where  the  original  purchaser  was  given  a  sub- 
sequent parol  extension  of  time  for  making  payment.'  The 
assignee  of  a  lease  with  a  covenant  to  renew  was  accord- 
ingly held  entitled  to  sue  the  covenantor  for  renewal."  And 
where  the  assignee  of  an  agreement  for  a  lease  was  solvent, 
and  it  did  not  appear  that  the  contract  was  restricted  to  the 
assignor,  specific  performance  was  decreed  in  favor  of  the 
assignee.*  A.  and  B.  entered  into  an  agreement,  by  which 
A.  was  to  furnish  twenty-seven  hundred  peach  trees,  B.  to 

203  ;  Currier  v.  Howard,  14  Gray,  511.  The  assignee  of  one  of  two  obligees  in 
a  bond  for  conveyance  of  real  estate,  having  brought  suit,  afterward  acquired 
the  interest  in  the  land  of  both  obligees  in  the  bond.  Held,  that  such  suit  was 
not  a  bar  to  a  subsequent  suit  for  specific  performance,  between  the  same  parties 
concerning  the  same  land.  Knott  v.  Stephens,  3  Oregon,  235.  G.  conveyed  land 
to  K.,  reserving  the  free  and  perpetual  right  of  way  over  such  part  of  the  prem- 
ises as  should  be  occupied  by  a  passage-way  ;  and  a  cross  passage  was  to  be 
completed  as  described.  K.  executed  a  bond  to  G.,  undertaking  to  finish  said 
passage-way  on  demand  after  a  certain  time.  Afterward,  the  lot  conveyed  to  K. 
became  the  property  of  H.,  the  defendant,  having  been  conveyed  to  him  subject 
to  the  reservation.  H.  and  K.  were  requested  to  finish  the  passage-way,  but 
neglected  to  do  so.  Held,  that  a  decree  for  specific  performance  of  the  obliga- 
tion in  the  bond  would  not  be  made  against  K.,  he  having  sold  the  land,  and 
that  the  bond  was  a  personal  obligation,  and  not  a  covenant  running  with  the 
land.     Smith  v.  Kelley,  56  Me.,  64. 

'  Hays  V.  Hall,  4  Porter,  374;  McMorris  v.  Crawford,  15  Ala.,  271. 

^  Ewins  V.  Gordon,  49  N.  H  ,  444.  The  assignee  of  a  contract  is  bound  to 
perform  both  the  conditions  of  the  contract  in  favor  of  the  other  party,  and  the 
conditions  of  the  assignment,  to  entitle  him  to  a  specific  performance  of  the 
original  contract.  So,  too,  where  the  other  party  has  assented  to  the  assign- 
ment, if  he  has  not  waived  the  conditions  of  the  original  contract,  and  is  not  a 
party  to  the  assignment.    Jones  v.  Lynde,  7  Paige  Ch.,  301. 

"  Duke  V.  Mayor  of  Exon,  2  Freem.,  183  ;  Vandenanker  v.  Desbrough,  2 
Vern.,  96;  Moyses  v.  Little,  lb.,  194;  Robinson  v.  Perry,  21  Ga.,  183. 

*  Crosbie  v.  Tooke,  i  M.  and  K.,  431  ;  Morgan  v.  Rhodes,  lb.,  435.  But  see 
Dowell  v.  Dew,  i  Y.  and  C.  C.  C,  345,  in  which  the  court  refused  to  decree  the 
specific  performance  of  an  agreement  for  a  lease  in  favor  of  the  assignee,  except 
upon  the  terms  that  the  assignor  should  enter  into  the  covenants  of  the  lease. 
Where  such  acts  have  been  committed  by  the  assignee  of  a  contract  for  a  lease 
as  would  have  created  a  forfeiture  had  the  lease  been  actually  executed,  equity 
will  not  decree  specific  performance  of  such  agreement  against  the  purchaser  of 
the  land  who  has  recovered  judgment  at  law.  Jones  v.  Roberts,  3  Hen.  and 
Munf ,  436.  A  court  of  equity  will  not  decree  specific  performance  against  the 
assignee  of  a  chattel  who  has  received  the  legal  title  subsequent  to  the  making 
of  a  contract  respecting  the  same  chattel  which  neither  passed  the  legal  nor  the 
equitable  title,  even  though  he  acquired  it  with  notice.  Maulden  v.  Armistead, 
18  Ala.,  500.  As  to  right  of  assignee  of  a  chose  in  action  to  sue  at  law  in  Mas- 
sachusetts, see  Walker  v.  Brooks,  125  Mass.,  241. 


§  6g.  PARTIES    TO    BILL    IN    CASE    OF    ASSIGNMENT.  9/ 

plant  and  cultivate  them  on  his  own  farm,  and,  at  the  joint 
expense  of  the  parties,  to  pick  and  market  the  fruit.  A. 
died,  and  his  administrator  sold  his  interest  under  the  con- 
tract, to  C.  Held,  that  C.  could  enforce  specific  perform- 
ance and  payment  of  half  the  net  proceeds  of  the  sale.'  All 
the  assignees  of  a  contract  which  has  passed  through  several 
hands  by  assignment,  should  be  joined  in  a  suit  for  specific 
performance.'  Where  a  vendor  of  land  executed  a  bond  for 
title,  but  did  not  receive  the  whole  of  the  purchase  money, 
and  afterward  became  bankrupt,  it  was  held  that  his  as- 
signee must  be  made  a  party  defendant  in  a  suit  for  specific 
performance  of  the  contract  to  convey.' 

§  69.  Parties  to  bill  in  case  of  assignment. — If  the  bill 
be  filed  by  the  vendor's  assignee,  the  vendor,  or  if  he  is 
dead,  his  personal  representative,  must  be  made  a  defend- 
ant.* It  has  been  seen  that  when  the  contract  has  been 
assigned  by  the  purchaser,  a  suit  against  the  vendor  should 


1  McKnight  v.  Robbins,  5  N.  J.  Eq.,  i  Halst.,  229.  An  owner  of  land  supposed 
to  contain  minerals,  by  an  instrument  in  writing  granted  to  B.  the  right  t(»dig 
a  mine  on  the  land,  and  to  remove  therefrom  any  mineral  he  might  dig  within  a 
year.  A  few  months  thereafter,  B.,  by  an  indorsement  on  the  contract,  assigned 
to  C.  all  his  interest,  right,  and  privilege  in  the  land,  with  the  appurtenances, 
and  all  the  benefit  and  advantages  derivable  from  such  instrument,  after  which 
B.  filed  a  bill  in  equity  against  A.  for  specific  performance  of  the  agreement. 
Held  that  as  B.  had  parted  with  all  his  interest  in  the  subject  of  the  suit,  the 
bill  must  be  dismissed.  Gaston  v.  Plum,  14  Conn.,  344.  A.,  who  owned  a  tract 
of  land  supposed  to  contain  five  hundred  acres,  sold  to  B.  two  hundred  and  fifty 
acres,  to  be  selected  by  him,  and  the  balance  to  C.  B.  made  his  selection,  and 
the  land  was  surveyed  by  C,  and  conveyed  by  A.,  in  accordance  with  the  survey. 
B.'s  land  falling  short,  he  filed  a  bill  against  C.  for  the  deficit,  and  a  decree  was 
granted  accordingly.     Lee  v.  Durrett,  4  Bibb.,  20. 

"^  Estill  v.  Clay,  2  A.  K.  Marsh,  497  ;  Allison  v.  Shilling,  27  Texas,  450.  In  the 
case  last  cited,  A.  executed  his  title  bond  for  land  to  B.,  who  assigned  the  same 
to  C. ;  C.  gave  his  bond  for  part  of  the  land  to  D.,  and  D.  conveyed  by  title  bond 
to  E.  In  a  suit  by  the  latter  against  A.,  it  was  held  that  those  through  whom 
the  plaintiff  derived  his  equitable  title,  must  be  made  parties.  "  The  plaintiff,  in 
this  case,  seeks  to  divest  the  title  out  of  the  defendant,  not  in  favor,  however,  of 
the  party  to  whom  he  is  bound  by  his  bond  or  its  assignment,  but  in  favor  of 
one  claiming  under  a  contract  to  which  he  is  a  stranger,  and,  it  must  be  pre- 
sumed, ignorant  of  its  stipulations,  and  unadvised  whether  they  have  been  ful- 
filled. Under  these  circumstances,  we  think,  on  principle  and  policy,  the  plain- 
tiff should  be  required  to  make  those  through  whom  he  claims  the  right  of  en- 
forcing a  contract  in  which  he  has  no  privity,  parties  to  his  suit."  lb.,  per  Moore,  J. 

^  Swepson  v.  Rouse,  65  N.  C,  34. 

*  Fulham  v.  M'Carthy,  i  H.  L.  Cas.,  703,  722  ;  Ryan  v.  Anderson,  3  Mad., 
97  ;  Hoover  v.  Donally,  3  Hen.  &  Munf ,  316. 


98  WHO    MAY    SUE    OR    BE    SUED.  §§   70,   J  I. 

be  brought  by  the  assignee,  making  the  purchaser  a  party.* 
A.  having  agreed  to  sell  to  B.  certain  land  of  C,  contracted 
with  C.  for  its  purchase,  and  C.  refused  to  complete,  on 
this  among  other  grounds.  The  price  being  adequate,  and 
C.  not  alleging  that  he  had  ever  refused,  or  was  unwilling 
or  w^ould  hav^e  objected  to  treat  with  B.,  or  might  have  ob- 
tained better  terms  from  him  had  he  been  apprised  of  the 
real  situation,  specific  performance  w^as  decreed  at  the  suit 
of  A.  and  B.'  But  if  the  purchaser  enter  into  an  agree- 
ment to  convey  the  estate  to  a  sub-purchaser,  and  not  that 
the  original  vendor  shall  convey  it,  such  sub-purchaser  is 
not  a  necessary  party  to  a  suit  for  the  performance  of  the 
original  contract.'  So,  where  the  purchaser's  assignee  has 
been  accepted  in  his  place  by  the  vendor,  the  original  pur- 
chaser should  not  be  made  a  party  to  the  vendor's  suit* 
Where  A.  agreed  to  assign  to  B,  a  contract  for  carrying 
the  mails,  which  was  only  executed  by  A.  ;  and  B.  filed  a 
bill  for  specific  performance  against  A.  and  C,  to  whom 
the  contract  had  been  assigned  ;  it  was  held  that  D.,  the 
partner  of  C,  who  was  one  of  A.'s  sureties  to  the  govern- 
ment, was  a  necessary  party.' 

§  70.  Suit  by  assignee  of  uiortgage. — If  the  interest  of 
a  party  in  the  contract  for  sale  be  mortgaged,  the  assignee 
of  such  mortgage  may  maintain  a  suit  for  specific  perform- 
ance. Accordingly,  where  A.  agreed  to  sell  certain  prop- 
erty to  B.,  and  then  mortgaged  his  interest  under  this 
agreement  to  C,  and  C.  assigned  his  mortgage  to  D.,  it 
was  held  that  D.  might  maintain  a  suit  against  B.  to  en- 
force the  agreement  between  him  and  A.' 

§  71.  In  case  of  sale  of  property  2inder  decree,  or  on  exe- 
cution.— The  purchaser  of  a  vendee's  title,  sold  under  a 

'  Ante,  %  68  ;  Chadwick  v.  Piatt,  11  Beav.,  503. 
■■'  Nelthorpe  v.  Holgate,  i  Coll.  C.  C,  203. 

'  Chadwick  v.  Maden,  9  Hare,   188;  Fenwick  v.  Bulman,   L.  R.  9,  Eq.  165. 
See  Anon  v.  Walford,  4  Russ.,  372  ;  atite,  §  59. 
■*  Holden  v.  Hayn,  i  Mer.,  47  ;  Hall  v.  Laver,  3  Y.  &  C,  Ex.  191  ;  ante,  §  59. 
^  Woodward  v.  Aspinwall,  3  Sandf.,  272. 
'  Browne  v.  London  Necropolis  Co.,  Week.  R.,  1857-1858,  188. 


§   72.  PERSONAL    CONTRACTS.  99 

valid  decree,  succeeds  to  his  position,  and  may  maintain  a 
suit  for  specific  performance  against  the  vendor.  The 
vendor  may  file  a  bill  to  sell  the  premises  in  default  of  pay- 
ment, so  as  to  discharge  himself  of  the  vendee's  equities. 
But  the  vendee  has  no  right  to  a  decree  of  sale  against  the 
vendor  for  the  purpose  of  paying  the  unpaid  purchase 
money."  Where  land,  under  a  contract  of  sale,  but  before 
conveyance  or  payment  of  the  purchase  money  was  taken 
on  execution  against  the  vendor,  it  was  held  that  the 
vendee  could  not  be  relieved  against  a  purchaser  under  the 
execution,  except  by  paying  to  such  purchaser  the  price 
paid  by  him,  or  the  amount  named  in  the  contract." 

§  72.  Personal  contracts. — When  the  agreement  is  per- 
sonal, depending  upon  the  learning,  skill,  solvency,  or  other 
characteristic  of  the  contracting  party,  he  alone  can  per- 
form it.  A  contract  between  an  author  and  publisher  was 
accordingly  held  incapable  of  assignment.'  How  far,  in 
an  agreement  for  a  lease,  the  landlord  relies  on  the  solvency 
of  the  proposed  lessee  as  a  personal  qualification,  does  not 
seem  to  have  been  fully  settled.'  One  who  has  represented 
himself  to  be  an  agent  for  an  individual  on  whose  personal 
qualities  reliance  has  been  placed,  will  not  be  permitted  to 
sue  as  principal.^  Where  the  lessee  of  a  farm  who  was  in- 
solvent permitted  another  person  to  become  the  apparent 
occupier  of  the  premises,  but  with  a  secret  trust  for  him- 
self, and  the  landlord  supposing  that  the  trustee  was  the 
sole  possessor,  and  relying  on  his  solvency,  agreed  to  grant 
him  a  new  lease,  in  a  suit  by  the  original  lessee  against  the 
landlord,  specific  performance  of  this  agreement  was  re- 
fused, on  the  ground  that  the  landlord  had  entered  into  it 
under   the  expectation  of  having  the  covenants  of  a  re- 

1  Fitzhugh  V.  Smith,  62  III,  486. 

-  Tomlinson  v.  Blackburn,  2  Ired.  Eq.,  509.. 

'  Stevens  v.  Benning,  i  K.  &  J.,  168.     Set  past,.  §  87. 

*  Crosbie  v.  Tooke,  i  M.  &  K.,  431  ;  Morgan  v.  Rhodes,,  lb. ,.435  ;  Dowell  v. 
Dew,  I  Y.  &  C.  C.  C,  345. 

^  Rayner  v.  Grote,  15  M.  &  W.,  365;  Field  v.  Maghee,.  5  Paige  Ch.,  539; 
Rogers  v.  The  Traders'  Ins.  Co.,  6  lb.,  584 ;,  post,.%  86.. 


lOO  WHO    MAY    SUE    OR    BE    SUED.  §§   ']l,   74. 

sponsible  man,  which  he  could  not  do,  as  there  was  no 
equity  to  compel  the  trustee  to  enter  into  the  covenants/ 
And  if  a  person  make  a  contract  with  another,  relying  on 
his  skill,  but  who  is  in  fact  a  secret  trustee,  such  person 
will  not  be  compelled  to  perform  the  agreement  for  the 
cestui  que  trust.'' 

§  ']2i.  In  case  of  agreement  founded  on  personal  considera- 
tw7is. — Although  the  contract  be  not  personal,  yet  if  it  be 
influenced  by  motives  of  kindness  toward  the  trustee,  or 
feelings  of  dislike  for  the  concealed  beneficiary,  which  are 
known  to  the  other  party,  specific  performance  may  be  re- 
fused at  the  suit  of  the  person  on  whose  behalf  the  osten- 
sible principal  contracted/  The  plaintiff,  who  had  tried 
without  success  to  purchase  an  estate  from  the  defendant, 
got  the  secretary  of  Lord  Chancellor  Nottingham  to  enter 
into  a  negotiation  in  his  behalf,  under  the  pretence  that  it 
was  for  the  Lord  Chancellor  or  his  son.  The  defendant 
had  several  cases  pending  in  chancery,  and  wishing  to 
oblige  the  Lord  Chancellor  he  made  the  agreement  ;  but, 
upon  discovering  who  the  real  purchaser  was,  refused  to 
complete.  The  plaintiff's  bill  was  dismissed,  but  specific 
performance  w^as  ultimately  granted  on  payment  by  the 
plaintiff  of  the  full  value  of  the  estate,  which  was  a  larger 
sum  than  that  originally  agreed."  Where  a  lady,  from 
family  considerations,  contracted  with  her  son-in-law  for  a 
lease,  for  his  accommodation,  in  the  mansion  house  and 
demesne  lands,  specific  performance  was  refused  at  the 
suit  of  his  assignees  in  bankruptcy.' 

§  74.   Where   an    assignment    is  forbidden,   or   against 


'  O'Herlihy  v.  Hedges,  i  Sch.  &  Lef.',  123. 

"  Ibid  ;  Featherstonaugh  v.  Fen  wick,  17  Ves.,  313. 

'  Bonnet  v.  Sadler,  14  Ves.,  528  ;  contra.  Lord  Irnham  v.  Child,  i  Bro.  C.  C, 
92  ;  see  Jordan  v.  Sawkins,  i  Ves.  Jun.,  402  ;  Fellowes  v.  Lord  Gwydyr,  i  R. 
&  M.,  83. 

*  Phillips  V.  Duke  of  Buckingham,  i  Vern.,  227.  See  7iote  to  foregoing  case, 
I  Sug.  Vend.,  loth  ed.,  349;  Harding  v.  Cox,  i  Vern.,  227,  note ;  Scott  v.  Lang- 
staffe,  cited  Lofft.,  797. 

'  Flood  V.  Finlay,  2  BaU  &  B„  9. 


§   74-  WHERE    AN    ASSIGNMENT    IS    FORBIDDEN.  lOl 

public  policy. — When  it  is  agreed  that  the  instrument  to  be 
executed  shall  contain  a  provision  against  assignment,  it 
operates  to  prevent  not  only  an  assignment  of  the  interest 
when  perfected,  but  also  of  the  agreement/  There  may, 
however,  be,  for  the  purposes  of  specific  performance,  a 
waiver  of  the  proviso  ;  as  where  the  assignee  of  the  pro- 
posed lessee  is  recognized  by  the  landlord  as  tenant."  The 
assignment  may  be  void  as  being  illegal,  or  contrary  to 
pubhc  policy  :  as  the  assignment  by  an  officer  in  the  army 
of  his  commission  by  way  of  mortgage  ;'  or  of  his  full  pay, 
or  half  pay  ;*  or  of  compensation  granted  to  him  for  the 
reduction  of  his  emoluments  or  the  abolition  of  his  office, 
when,  by  the  terms  of  the  grant,  he  may  be  required  to 
return  to  the  public  service  ;'  or  the  assignment  of  the 
profits  of  a  public  office/  Although  it  is  not  unlawful  to 
assign  a  right  at  the  time  undisputed,  but  which,  from  cir- 
cumstances subsequently  discovered,  it  becomes  necessary 
to  litigate  with  third  persons,  and  the  assignee  may  main- 
tain his  bill  in  equity ;'  yet  it  is  contrary  to  public  policy 
to  permit  the  assignment  of  a  mere  naked  right  to  sue.' 

*  Weatherall  v.  Geering,  12  Ves.,  504.     '^  Dowell  v.  Dew,  i  Y.  &  C.  C.  C,  345. 
2  Collyer  v.  Fallon,  i  T.  &  R.,  459. 

*  Davis  V.  Duke  of  Marlboroug-h,  I  Svvanst.,  79 ;  McCarthy  v.  Goold,  i  Ball 
&  B.,  387;  Flarty  v.  Odium,  3  Term.  R.,  681  ;  Tunstall  v.  Boothby,  10  Sim., 
540 ;  Grenfell  v.  Dean  of  Windsor,  2  Beav.,  544.  When  an  assignor  has  for- 
feited his  right  to  a  specific  performance  by  a  refusal  to  perform,  the  assignee  of 
the  obligation  cannot  enforce  performance.  Frazier  v.  Broadnax,  2  Litt.  Ky., 
249. 

"  Wells  V.  Foster,  8  M.  &.  W.,  149.  '  Hill  v.  Paul,  8  CI.  &  Fin.,  295. 

'  Wilson  \^  Short,  6  Hare,  366. 

'  Prosser  v.  Edmonds,  i  Y.  &C.,  Ex.  481.  In  this  case  Lord  Abinger,  among 
other  things,  said  :  "  Where  an  equitable  interest  is  assigned,  it  appears  to  me, 
that  in  order  to  give  the  assignee  a  locus  stand/  in  a  court  of  equity,  the  party 
assigning  that  right  must  have  some  substantial  possession,  some  capability  of 
personal  enjoyment,  and  not  a  mere  naked  right  to  overset  a  legal  instrument. 
For  instance,  that  a  mortgagor  who  conveys  his  estate  in  fee  to  a  mortgagee, 
has  in  himself  an  equitable  right  to  compel  a  re-conveyance  when  the  mortgage 
money  is  paid,  is  true.  But  that  is  a  right  reserved  to  himself  by  the  original 
security.  It  is  a  right  coupled  with  possession  and  receipt  of  rent,  and  he  is 
protected  so  long  as  the  interest  is  paid  ;  and  it  does  not  follow  that  the  assignee 
of  the  mortgage  and  the  mortgagee  may  not  adjust  their  rights  without  the  in- 
tervention of  a  court  of  equity.  In  the  present  case,  it  is  impossible  that  the 
assignee  can  obtain  any  benefit  from  his  security,  except  through  the  medium  of 
the  court.     He  purchases  nothing  but  a  hostile  right  to  bring  parties  into  a 


I02  WHO    MAY    SUE    OR    BE    SUED.  §   74. 

On  the  latter  ground  specific  performance  was  refused  of 
an  agreement,  by  a  person  out  of  possession,  to  grant  a 
present  lease  to  a  party  who  knew  at  the  time  that  he 
could  not  obtain  possession  without  a  suit/  Upon  the 
same  principle  contracts  by  which  public  companies  seek 
to  delegate  powders  with  which  they  are  entrusted  by 
statute,  involving  special  responsibilities  which  do  not  at- 
tach to  the  parties  contracted  with,  are  incapable  of  being 
enforced  in  equity/ 

court  of  equity  as  defendants  to  a  bill  filed  for  the  purpose  of  obtaining  the 
fruits  of  his  purchase.  So,  where  a  person  takes  an  assig-nment  of  a  bond  he 
has  the  possession  ;  and  although  a  court  of  equity  will  permit  him  to  file  a  bill 
on  the  bond,  it  does  not  follow  that  he  is  obliged  to  go  into  a  court  of  equity  to 
enforce  payment  of  it.  So,  other  cases  might  be  stated  to  show  that  where 
equity  recognizes  the  assignment  of  an  equitable  interest,  it  is  such  an  interest 
as  is  also  recognized  by  third  persons,  and  not  merely  by  the  party  insisting  on 
it.  What  is  this  but  the  purchase  of  a  mere  right  to  recover  ?  It  is  a  rule,  not 
of  our  law  alone,  but  of  that  of  all  countries,  that  the  mere  right  of  purchase 
shall  not  give  a  man  a  right  to  legal  remedies.  The  contrary'  doctrine  is  no- 
where tolerated,  and  is  against  good  policy.  All  our  cases  of  maintenance  and 
champerty  are  founded  on  the  principle  that  no  encouragement  should  be  given 
to  litigation  by  the  introduction  of  parties  to  enforce  those  rights  which  others 
are  not  disposed  to  enforce."  "It  is  the  opinion  of  some  learned  persons  that 
the  old  rule  of  law,  that  a  chose  in  action  is  not  assignable,  was  founded  on  the 
principle  of  the  law  not  permitting  a  sale  ol  a  right  to  litigate.  That  opinion  is 
to  be  met  with  in  Sir  William  Blackstone,  and  the  earlier  reporters.  Courts  of 
equity,  it  is  true,  have  relaxed  that  rule  ;  but  only  in  the  cases  which  I  have 
mentioned,  where  something  more  than  a  mere  right  to  litigate  has  been  as- 
signed. Where  a  valuable  consideration  has  passed,  and  the  party  is  put  in 
possession  of  that  which  he  might  acquire  without  litigation,  there  courts  of 
equity  will  allow  the  assignee  to  stand  in  the  right  of  the  assignor." 

'  Bayly  V.  Tyrrell,  2  Ball  &  B.,  358.  In  Williams  v.  Evans,  i  C.  B.,  717, 
tried  in  the  English  court  of  common  pleas.  A.,  the  owner  of  a  term,  having 
died  in  1828,  B.,  his  brother,  who  had  previously  been  in  possession  of  a  portion 
of  the  premises,  took  and  remained  in  possession  of  the  whole  until  1829,  when 
he  died  leaving  all  his  interest  in  the  property  to  C,  who  thereupon  entered  and 
continued  in  undisputed  possession  until  1841,  when  D.,  a  brother  of  A.,  took 
out  letters  of  administration,  and  sold  his  interest  in  the  property,  as  such  ad- 
ministrator, for  ten  pounds.  The  transaction  was  held  void,  both  at  common 
law  and  under  the  statute  of  32  Henry  VIII.,  Ch.  9,  which  prohibits  any  person 
from  selling  or  buying  any  pretended  rights  or  titles  to  any  lands,  unless  the 
vendor  has  been  in  possession  of  the  same,  or  of  the  reversion,  or  in  receipt  of 
the  rents  thereof,  for  a  year  before  the  sale.  But  the  sale  of  an  expectancy  is 
not  within  the  mischief  of  the  foregoing  statute  ;  such  a  sale  not  being  a  claim 
to  any  present  right  or  title,  but  ol  the  possibility  that  one  may  thereafter  exist. 
Cook  V.  Field,  15  Q.  B.,  460  ;  Fry  on  Specif.  Perform.,  55,  56. 

*  Johnson  v.  Shrewsbury  &  Birmingham  R.R.  Co.,  3  De  G.  M.  &  G.,  914 ; 
Reman  v.  Rufford,  i  Sim.  N.  S.,  550  ;  S.  C.  7,  Rail.  C,  48  ;  Gt.  Northern  R.R. 
Co.  v.  Eastern  Counties  R.R.  Co.,  9  Hare,  306.  Although  a  concluded  con- 
tract may  be  assignable,  yet  it  is  otherwise  as  to  a  mere  offer.  "  In  case  of  an 
offer  by  A.  to  sell  to  B.,  an  acceptance  of  the  offer  by  C.  can  establish  no  con- 
tract \vith  A.,  there  being  no  privity."  Fry  on  Specif.  Perform.,  57  ;  Meynell  v. 
Surtees,  3  Sm.  &  G.,  loi,  117. 


§  75-  LIABILITY    OF    ASSIGNEE    WITH    NOTICE.  IO3 

§  75.  Liability  of  assig-nee  with  notice. — Where  a  party 
having  entered  into  an  agreement  for  sale,  afterward  aliens 
or  assigns  the  property,  or  contracts  to  do  so,  to  a  person 
who  has  notice  of  the  original  contract,  the  latter  will  be 
liable  to  perform  it  at  the  suit  of  the  purchaser/  And  we 
have  seen  that  all  persons  having,  or  claiming  to  have,  an 
interest  in  the  land,  obtained  after  the  date  of  the  contract 
sought  to  be  specifically  enforced,  with  notice,  are  neces- 
sary parties  in  a  suit  to  compel  conveyance/  "  If  the  con- 
tract is  a  binding  one,  it  can  be  enforced  against  any  party 
in  whom  is  vested  the  legal  and  beneficial  interest  in  the 
property."*  "  If  he  is  a  purchaser  with  notice,  he  is  liable 
to  the  same  equity,  stands  in  his  place,  and  is  bound  to  do 
that  which  the  person  he  represents  would  be  bound  to  do 
by  the  decree."  '  The  following  case  illustrates  this  princi- 
ple :  A.,  w^ho  was  the  lessee  of  a  college,  executed  a  sub- 

1  Howard  v.  Hopkins,  2  Atk.,  371  ;  Ford  v.  Crompton,  2  Bro.  C.  C,  32  ; 
Jackson's  Case,  5  Vin.  Abr.,  543,  PI.  3;  Jalabert  v.  Duke  of  Chandos,  i  Ed., 
372;  Brooke  v.  Hewitt,  3  Ves.,  253;  Knollys  v.  Alcock,  5  lb.,  648;  Crofton  v. 
Ormsby,  2  Sch.  &  Lef.,  583  ;  Meux  v.  Maltby,  2  Swanst.,  277  ;  Spence  v.  Hogg, 
I  Coll.  C.  C,  225  ;  Dowell  v.  Dew,  i  Y.  &  C.  C.  C,  345  ;  Goodwin  v.  Fielding,  4 
De  G.  M.  &  G.,  90  ;  Potter  v.  Saunders,  6  Hare,  i  ;  Shaw  v.  Thackray,  i  Sm.  & 
G.,  537  ;  Hersey  v.  Giblett,  18  Beav.,  174;  Foss  v.  Haynes,  31  Me.,  81  ;  Laverty 
V.  Moore,  33  N.  Y.,  658  ;  New  Barbadoes  Toll  Bridge  v.  Vreeland,  4  N.  J.  Eq., 
3  Green,  157. 

■  Ajite,  §  64.  See  Morris  v.  Hoyt,  11  Mich.,  9  ;  Seager  v.  Burns,  4  Minn.,  141  ; 
Stone  V.  Buckner,  12  Smed.  &  Marsh,  73 ;  Scarborough  v.  Arrant,  25  Texas, 
129;  Fullerton  v.  McCurdy,  4  Lansing,  N.  Y.,  132.  Where  a  person  contracts 
to  sell  land,  and  subsequently  conveys  the  same  to  a  third  party  who  has  notice 
of  the  prior  contract  of  sale,  such  third  party  stands  in  the  place  of  his  vendor; 
and  if  equity  would  decree  specific  performance  against  such  vendor,  it  will  ren- 
der a  like  decree  against  such  subsequent  purchaser.  Information,  from  what- 
ever source  derived,  which  would  excite  apprehension  in  an  ordinary  mind,  and 
prompt  a  person  of  average  prudence  to  make  inquiry,  will  be  sufficient  notice. 
Notice  to  the  agent  in  such  case,  will  be  notice  to  the  principal,  even  though  the 
principal  takes  the  matter  out  of  the  agent's  hands  while  the  latter  is  engaged 
in  the  negotiations,  and  completes  it  himself.     Bryant  v.  Booze,  55  Ga.,  438. 

^  Lord  St.  Leonards,  in  Saunders  v.  Cramer,  3  Dr.  &  W.,  99. 

*  Lord  Rosslyn,  in  Taylor  v.  Stibbert,.2  Ves.  Jun.,  437.  Where  land  has  been 
sold  by  a  vendor  subsequent  to  a  written  agreement  by  him,  that  he  will  convey 
to  another  person  in  a  certain  event,  in  a  bill  by  such  person  against  the  vendee, 
the  vendor,  or  his  personal  representatives,  should  be  made  parties.  Lewis  v. 
Madison,  i  Munf.,  303  ;  Dailey  v.  Litchfield,  10  Mich.,  29.  In  a  suit  for  specific 
performance,  by  the  obligee  of  a  bond  conditioned  to  convey  real  estate,  one 
who  has  purchased  from  the  obligor  after  the  obligee's  note  given  for  the  pur- 
chase money  was  overdue,  is  not  a  proper  party.  In  such  case,  the  obligor  and 
his  heirs  are  the  proper  defendants.     Harrington  v.  Pinson,  30  Miss.,  30. 


I04  WHO    MAY    SUE    OR    BE    SUED.  §   75. 

lease  of  certain  land  for  fourteen  years,  and  covenanted  to 
take  a  new  lease  from  the  college,  and  to  renew  the  plain- 
tiff's lease  with  three  years  added  to  it,  or  answer  the  want 
thereof  in  damages,  and  that  the  wood  granted  to  the  plain- 
tiff by  the  lease,  was  to  be  full  fourteen  years'  growth  be- 
fore it  could  be  cut.  A.  havingr  renewed  and  assio-ned  his 
lease  to  B.,  who  had  notice  of  A.'s  covenant  with  the  plain- 
tiff, it  was  decreed  that  B.  should  execute  to  the  plaintiff  a 
new  lease  with  the  additional  three  years,  pursuant  to  A.'s 
covenant.'  So,  if  a  person  who  has  a  prior  title,  gets  in 
the  subsequent  estate  which  is  affected  by  the  contract, 
with  notice  of  it,  his  elder  title  will  not  protect  him  from 
the  performance  of  the  contract.  Where,  therefore,  an 
equitable  mortgagor  entered  into  a  contract  for  a  lease,  and 
afterward  the  mortgagee,  whose  mortgage  was  prior  to  the 
agreement,  purchased  the  estate  with  notice,  he  was  held 
liable  to  specifically  perform  the  agreement.*  And  where  A., 
who  had  only  the  equity  of  redemption,  agreed  to  sell  to 
B.,  and  afterward  A.  and  his  mortgagee  conveyed  to  C, 
who  had  notice  of  A.'s  contract  with  B.,  it  was  held  that 
B.  was  entitled  to  specific  performance  on  the  part  of  C* 

1  Finch  V.  Earl  of  Salisbury  &  Hawtrey,  Finch,  212. 

5  Smith  V.  Phillips,  i  Ke.,  694. 

^  Lig-htfoot  V.  Heron,  3  Y.  &  C.  Ex.,  586.  In  Bird  v.  Hall,  30  Mich.,  374; 
Bird  having  contracted  to  purchase  certain  land  of  Hall,  and  partly  paid  for  it, 
contracted  to  sell  the  same  land  to  McFee,  who  also  partly  paid  for  it  and  was 
put  in  possession,  the  balance  of  the  purchase  money  not  being  yet  due.  After- 
ward Hall,  disregarding  the  rights  of  Bird,  conveyed  the  land  to  McFee,  who 
was  irresponsible,  thus  depriving  Bird  of  his  security  for  what  was  thereafter  to 
become  due  him  from  McFee.  A  bill  was  thereupon  filed  by  Bird,  praying  that 
McFee  might  be  decreed  to  convey  to  the  complainant,  in  specific  performance 
of  the  contract  of  Hall,  in  whose  shoes  as  his  assignee  he  then  stood.  Cooley, 
J.,  delivering  the  opinion  of  the  court,  said  :  "It  seems  clear,  that  a  conveyance 
as  prayed  by  the  bill,  would  be  strictly  equitable,  as  it  would  place  the  parties 
where  they  have  agreed  to  place  themselves  by  their  contracts.  Complainant  was 
entitled  to  a  conveyance  from  Hall  on  payment  of  the  balance  due  him,  which 
he  has  offered  to  make  ;  and  he  was  then  entitled  to  hold  the  title,  until  he  was 
paid  in  full  by  McFee.  This  is  conceded  by  defendants.  But  they  msist  that 
complainant  has,  at  law,  an  ample  remedy  against  Hall,  if  he  suffers  a  loss  in 
consequence  of  Hall's  conveyance  to  McFee ;  and  that  as  it  is  not  alleged  that 
Hall  is  irresponsible,  there  is  no  sufficient  ground  for  equitable  interference. 
What  complainant  loses  by  this  conveyance,  is  his  security  for  the  ultimate  pay- 
ment by  McFee.  Whether  a  loss  of  the  security  would  result  in  a  loss  of  the 
debt,  cannot  yet  be  determined  ;  and  any  present  right  of  action  at  law  would 
give  him  nominal  damages  only.    A  right  of  action  against  him  at  a  future  day, 


§§  1^-1^-       LIABILITY  OF  ASSIGNEE  OF  EQUITABLE  TITLE.      IO5 

Where  one  holds  a  deed  as  an  escrow,  and  refuses  to  de- 
liver the  same,  in  a  suit  for  specific  performance  of  the  in- 
strument, he  is  a  proper  party.' 

§  76.  Extent  of  rule  as  to  notice. — The  principle  of  no- 
tice is  not  restricted  to  contracts  of  sale,  but  is  equally- 
applicable  to  all  agreements  and  covenants  binding  the 
land  in  equity,  which  may  be  enforced  against  any  person 
into  whose  hands  the  land  may  come.  Specific  perform- 
ance will  therefore  be  granted  of  all  covenants  perma- 
nently affecting  the  enjoyment  of  the  land,  which  are  en- 
forced in  equity  against  all  subsequent  purchasers  with 
notice,  whether  the  covenants  be  or  be  not  such  as  would 
run  with  the  land  in  the  hands  of  subsequent  purchasers  at 
law.'  And  contracts  to  devise  lands  have  been  enforced 
against  persons  claiming  them  under  the  party  contracting 
to  make  the  will' 

%']'].  Liability  of  company  upon  formation  of  new  com- 
pany.— A  species  of  assignment  results  when  a  railroad  or 
other  public  company,  after  entering  into  a  contract,  be- 
comes consolidated  with  another  company ;  liability  under 
the  then  existing  contracts  of  the  company  being  trans- 
ferred to  the  new  company  thus  formed.' 

§  78.  Liability  of  assignee  of  equitable  title. — An  agree- 
after  the  personal  remedy  against  McFee  had  proved  ineffectual,  might  or  might 
not  find  him  in  a  condition  to  respond,  even  if  it  be  conceded  that  at  present  he 
is  entirely  responsible.  Complainant  cannot  justly  be  compelled  to  run  this  risk. 
These  parties  cannot  be  allowed  to  deprive  him  of  his  security,  and  turn  him 
over  to  the  contingencies  of  successive  suits  at  law  after  his  demand  has  ma- 
tured. He  has  a  right  to  be  protected  against  .the  suits  and  contingencies,  by 
having  ample  and  effectual  security  in  his  own  hands,  and  the  remedy  in  equity 
was  alone  adequate  to  the  case." 

'  Davis  V.  Henry,  4  West  Va.,  571. 

^  Tulk  V.  Moxhay,  2  Ph.,  774 ;  Cole  v.  Sims,  Kay,  56. 

^  Goylmer  v.  Paddiston,  2  Ventr.,  353 ;  S.  C.  as  Goilmere  v.  Battison,  i  Vern., 
48.  As  to  agreements  to  make  wills  containing  peculiar  dispositions,  see  Lord 
Walpole  V.  Lord  Orford,  3  Ves.,  402;  Jones  v.  Mertin,  5  lb.,  266,  note ;  Fortes- 
cue  V.  Hennah,  19  lb.,  67  ;  Needham  v.  Kirkman,  3  B.  &  A.,  531  ;  Needham  v. 
Smith,  4  Russ.,  318;  Logan  v.  Weinholt,  i  CI.  &  Fin.,  611  ;  Jones  v.  How,  7 
Hare,  267 ;  Barkworth  v.  Young,  4  Drew,  i  ;  Eyre  v.  Menro,  26  L.  J.  Ch.,  757. 

"  Stanley  v.  Chester  &  Birkenhead  R.R.  Co.,  9  Sim.,  264;  S.  C.  3,  M.  &  Cr., 
773;  Earl  of  Lindsey  V.  Gt.  Northern  R.R.  Co.,  10  Yi2iXt,  (>(ii„  and  cases  cited 
and  cotnmented  on. 


I06  WHO    MAY    SUE    OR    BE    SUED.  §   79. 

mcnt  entered  into  by  the  owner  of  a  chattel  with  the  equi- 
table owner  of  one-half  of  the  chattel,  to  hold  such  half 
interest  subject  to  the  order  of  a  third  person,  and  an  as- 
signment of  it  to  a  party  having  knowledge  of  the  agree- 
ment, may  be  enforced  against  the  assignee.'  Where  there 
is  a  purchase  of  real  or  personal  property  from  the  legal 
owner,  to  which  a  third  person  has  an  equitable  title,  and 
the  purchase  is  made  in  the  usual  course  of  business,  with- 
out notice  of  the  equitable  title,  for  a  valuable  consideration, 
or  if  the  purchaser  incurs  any  new  responsibilities  upon  the 
credit  of  it,  he  is  considered  a  bona  fide  purchaser,  against 
whom  the  owner  in  equity  can  have  no  relief.  But  if  no 
consideration  is  paid,  and  the  property  is  assigned,  and  re- 
ceived in  payment  of,  or  as  security  for,  a  pre-existing  debt, 
the  assignee  must  take  it  subject  to  all  the  equity  to  which 
the  assignor  was  subject.^  Where  A.  contracted  for  the 
purchase  of  lands,  became  insolvent,  and  assigned  them  to 
pay  certain  debts  and  to  return  the  residue  to  himself,  and 
B.,  a  creditor  not  included  in  this  assignment,  with  notice 
of  A.'s  claim  purchased  the  lands  of  the  owner  for  the  sum 
due  on  A.'s  contract,  it  was  held  that  he  could  not  be  com- 
pelled to  convey  to  A.'s  assignees  until  his  debt  and  the 
purchase  money  were  paid  to  him.' 

§  79.  Suit  by  holder  of  equitable  title. — Parties  whose 
interests  are  merely  equitable  may  represent  the  inheritance 
in  a  bill  for  specific  performance ;  as,  for  instance,  the  ten- 
ant for  life  and  the  contingent  remainder  man  in  fee,  pro- 
vided the  issue  of  the  remainder  man  will  take,  if  he  fails 
to  do  so  by  reason  of  the  contingency.*  Where  the  grantee 
of  an  equitable  title  to  land  seeks  to  compel  a  conveyance 
of  the  legal  title,  his  grantor  need  not  be  made  a  party.' 
The  owner  of  an  equitable  interest  in  land  agreed  to  con- 
vey an  interest  therein  to  another,  subject  to  the  approval 


'  Clark  V.  Flint.  22  Pick.,  231. 

'  Root  V.  French,  13  Wend.,  573  ;  Buffinglon  v.  Gerrish,  15  Mass.,  156. 
^  Suydam  v.  Mastin,  Wright,  698.  ^  Sohier  v.  Wilhams,  i  Curtis,  479. 

Elliott  V.  Armstrong,  2  Blackf.,  198. 


§§  8o,   8 1.  LIABILITY    OF    PUBLIC    COMPANY.  IC7 

of  the  holder  of  the  legal  title,  and  with  his  knowledge  ; 
the  purchaser  agreeing  to  build  a  depot  and  side  track  near 
the  same,  which  he  did  at  his  own  expense,  thereby  greatly 
increasing  the  value  of  the  tract.  Held,  that  the  contract 
should  be  enforced  subject  to  the  rights  of  the  holder  of 
the  legal  title  for  any  sum  due  him.' 

§  80.  Notice  to  vendor  of  agreement  of  vendee  to  assign 
contract. — A  vendor  of  land  may  receive  the  balance  of  the 
purchase  money  and  convey  the  land  to  the  purchaser, 
without  regard  to  the  receipt  of  a  notice  from  a  third  per- 
son that  the  purchaser  had  agreed  to  assign  the  contract  to 
him.''  A  vendor  agreed  to  sell  leaseholds,  which  were  un- 
der a  heavy  rent,  and  received  part  of  the  purchase  money. 
The  purchaser  afterward  agreed  to  assign  to  a  bank  the 
contract  of  purchase  by  way  of  security  for  money  ad- 
vanced, and  the  bank  notified  the  vendor  of  this  agree- 
ment. The  bank  afterward  refused  to  complete,  but  this 
was  not  known  to  the  vendor.  The  purchaser,  after  the 
time  fixed  for  completion,  paid  the  balance  of  the  pur- 
chase money;  the  vendor  executed  an  assignment  to  him; 
and  the  purchaser  conveyed  to  an  assignee  without  notice 
of  the  security  to  the  bank.  Held,  that  the  vendor  had  a 
right  to  complete  without  giving  notice  to  the  bank,  and 
that  the  bank  had  no  remedy  against  him.^ 

§  81.  Doctrine  as  to  liability  of  public  company  ttndcr 
contract  of  its  promoters. — An  exception  to  the  general 
rule,  that  those  who  entered  into  the  contract  are  alone 
proper  parties  to  the  suit,  arises  in  the  case  of  a  public 
company  sued  for  the  specific  performance  of  contracts 
entered  into  by  its  promoters  previous  to  its  incorporation, 
the  company  standing  in  the  place  of  the  promoters.'  The 
principle  is  said  to  have  been  first  introduced  in  the  case  of 

'  Booders  v.  Murphy,  78  111.,  81. 
^  Suydam  v.  Mastin,  Wright,  698. 
^  M'Creight  v.  Foster,  L.  R.  5,  Ch.  604. 

^  Caledonian  &  Dumbartonshire  Junction  R.R.  Co.  v.  Magistrates  of  Helens- 
burgh, 2  M'Q.,  394.     See  ante,  §  50. 


T08  WHO  MAY  SUE  OR  BE  SUED.  §  8 1. 

Edwards  v.  The  Grand  Junction  R.R.  Co.,"  in  which  the 
agent  of  the  promoters  of  a  raih'oad  entered  into  an  agree- 
ment with  the  trustees  of  a  pubHc  highway,  during  the 
pendency  of  the  railway  bill  before  Parliament,  as  to  cer- 
tain clauses  which  the  trustees  wished  to  have  inserted  in 
the  bill,  and  to  have  the  same  confirmed  under  the  seal  of 
the  company  proposed  to  be  incorporated  ;  the  trustees 
agreeing  to  offer  no  opposition  to  the  bill,  and  that  the 
contract  should  be  void  when  the  agent  delivered  to  the 
trustees  the  engagement  of  the  proposed  company  to  the 
same  effect.  The  railroad  bill  having  passed,  the  company 
undertook  to  make  a  road  across  the  railway  of  a  less  width 
than  that  stipulated  for  by  the  before-mentioned  clauses.  In  a 
suit  brought  by  the  trustees  against  the  company  for  specific 
performance  and  an  injunction,  the  company  was  held 
bound  by  the  agreement  entered  into  by  the  agent  of  the 
promoters.  Lord  Cottenham,  in  delivering  the  judgment 
of  the  court,  said  :  "The  question  is  not  whether  there  be 
any  binding  contract  at  law,  but  whether  this  court  will 
permit  the  company  to  use  their  powers  under  the  act  in 
direct  opposition  to  the  arrangement  made  with  the  trustees 
prior  to  the  act  upon  the  faith  of  which  they  were  per- 
mitted to  obtain  such  powers.  If  the  company  and  the 
projectors  cannot  be  identified,  still  it  is  clear  that  the  com- 
pany have  succeeded  to,  and  are  now  in  possession  of,  all 
that  the  projectors  had  before.  They  are  entitled  to  all 
their  rights  and  subject  to  all  their  liabilities.  If  any  one 
had  individually  projected  such  a  scheme,  and  in  the  prose- 
cution of  it  had  entered  into  arrangements,  and  then  had 
sold  and  assigned  all  his  interest  in  it  to  another,  there 
would  be  no  legal  obligation  between  those  who  had  dealt 
with  the  original  projector  and  such  purchaser.  But  in  this 
court  it  would  be  otherwise.  So  here,  as  the  company 
stand  in  the  place  of  the  projectors,  they  cannot  repudiate 
arrangements    into    which    such     projectors    had    entered. 

'  I  M.  &  Cr.,  650;  I  Rail.  C,  173;  7  Sim.,  337. 


§§  82,  St,.  contract  of  promoters.  109 

They  cannot  exercise  the  powers  given  by  ParHament  to 
such  projectors,  in  their  corporate  capacity,  and  at  the  same 
time  refuse  to  comply  with  those  terms  upon  the  faith  of 
which  all  opposition  to  their  obtaining  such  powers  was 
withheld.'" 

§  82.  Co7itract  of  promoters  must  have  been  adopted  by 
company. — To  render  the  doctrine  in  question  applicable, 
the  company,  after  its  incorporation,  must  have  taken  the 
benefit  of  the  agreement,  and  thus  adopted  it  by  the  enjoy- 
ment of  the  consideration.  It  is  not  sufficient,  however, 
that  the  opposition  to  the  proposed  bill  was  withdrawn, 
that  being  a  consideration  moving,  not  to  the  company, 
but  to  the  promoters.  Accordingly,  where  a  company  hav- 
ing been  incorporated  in  consequence  of  the  withdrawal  of 
the  plaintiff's  opposition,  did  not  enter  upon  the  land,  or  in 
any  way  adopt  the  contract,  except  by  unsuccessful  negotia- 
tions, specific  performance  of  the  contract  was  refused,  and 
the  court  declined  to  order  the  defendants  to  admit  the 
validity  of  the  contract  in  an  action  at  law.*  It  has  been 
considered  that  the  cases  do  not  proceed  on  the  principle 
of  contract  through  the  agency  of  the  promoters,  but  on 
the  ground  "that  the  court  will  not  allow  a  body  to  exer- 
cise powers  acquired  by  means  of  a  previous  contract,  with- 
out carrying  such  contract  into  full  effect.  To  this  extent 
the  court  acts  negatively.  But  having  once  acquired  juris- 
diction, its  action  is  positive  as  well  as  negative ;  and  there 
fore  it  will  not  merely  restrain  the  doing  of  acts  contrary  to 
the  agreement,  but  will  enforce  every  portion  of  it."^ 

§  83.   Contract  of  projnoters  must  be  capable  of  perform- 

1  See  Stanley  v.  Chester  &  Birkenhead  R.R.  Co.,  3  M.  &  Cr.,  773 ;  S.  C.  i 
Rail  C,  58;  9  Sim.,  264;  Lord   Petre  v.  Eastern  Counties  R.R.  Co.,  i   Rail  C, 
462;  Greenhalgh  v.  Manchester  &  Birmingham  R.R.  Co.,  3  M.&  Cr.,  791  ;  Vaux 
hall  Bridge  Co.  v.  Ear!  Spencer,  Jac,  64 ;  East  London  Water  Works  v.  Baily, 
4  Bing.,  283. 

°  Gooday  v.  Colchester,  etc.,  R.R.  Co.,  17  Beav.,  132;  Williams  v.  St. 
Georges  Harbor  Co.,  3  Jur.  N.  S.,  1014 ;  Preston  v.  Liverpool,  Manchester,  and 
Newcastle  R.R.  Co.,  17  Beav.,  115. 

'  Fry  on  Specif.  Perform.,  64 ;  Earl  of  Lindsey  v.  Gt.  Northern  R.R.  Co.,  10 
Hare,  664;  Eastern  Counties  R.R.  Co.  v.  Hawkes,  5  House  of  Lds.,  356. 


I  lO  WHO    MAY    SUE    OR    BE    SUED.  §  83 

ance  by  company. — The  agreement  must  likewise  be  for 
something  warranted  by  the  terms  of  the  incorporation, 
and  which  the  company  has  therefore  power  to  perform. 
Where  the  magistrates  of  a  certain  town  agreed  with  the 
promoters  of  a  railroad,  to  afford  the  proposed  company 
facilities  for  the  construction  of  the  road  through  the  town, 
and  to  petition  Parliament  in  favor  of  the  bill,  the  promo- 
ters stipulating  that  the  company  should  pay  for  the  con- 
struction of  a  quay  and  harbor,  which  the  magistrates  were 
to  apply  to  Parliament  for  power  to  make,  specific  perform- 
ance w^as  refused  on  the  ground  tha.t  the  act  to  be  done  by 
the  company  would  not  be  within  its  powers  when  incor- 
porated ;  the  arrangement  being  for  the  application  of  the 
funds  raised  under  legislative  authority  for  the  purposes 
of  the  railway,  to  an  object  foreign  thereto,'  So,  an 
agreement,  by  the  promoters,  to  pay  five  thousand  pounds 
to  a  person  for  not  opposing  a  bill  in  Parliament,  w^as  held 
beyond  the  powers  of  a  railroad  company  when  incorpo- 
rated, and  therefore  incapable  of  being  enforced  against  the 
company." 

^  Caledonian  and  Dumbartonshire  R.R.  Co.  v.  Magistrates  of  Helensburgh, 
supra,  . 

'^  Preston  v.  Liverpool,  Manchester,  and  Newcastle  Junction  R.R.  Co.,  5  House 
of  Lds.,  0*05,  621.  And  see  Leominster  Canal  Co.  v.  Shrewsbury  and  Hereford 
R.R.  Co.,  3  K.  and  J.,  654.  It  has  been  seriously  questioned  whether  a  public 
company,  after  its  incorporation,  could  be  sued  for  the  specific  performance  of 
contracts  entered  into  before  the  passing  of  its  act,  by  the  promoters,  on  the 
ground  that  the  company  stands  in  the  place  of  the  promoters.  The  doctrine 
was  acted  on  by  Lords  Cottenham,  Campbell,  and  St.  Leonards,  but  it  was  criti- 
cised by  Vice-Chancellor  Wood,  and  disapproved  by  Lords  Brougham  and  Cran- 
worth.  In  the  Caledonian  and  Dumbartonshire  Junction  R.R.  Co.  v.  Magis- 
trates of  Helensburgh,  2  M'Q.,  391,  the  latter  observed  that  the  doctrine  in  ques- 
tion could  only  be  supported  on  the  assumption  that  the  company,  when  incor- 
porated, was,  in  substance,  though  not  in  form,  a  body  succeeding  to  the  rights, 
and  coming  into  the  place,  of  the  projectors,  which  he  argued  was  not  the  case  ; 
that  the  incorporated  body  was  not  confined  to  the  projectors,  and  might  even 
include  none  of  them  ;  that  the  act,  when  passed,  became  the  charter  of  the  com- 
pany, prescribing  its  duties,  and  declaring  its  rights ;  that  all  persons  becoming 
shareholders  had  a  right  to  consider  that  they  were  entitled  to  all  the  benefits  held 
out  by  the  act,  and  liable  to  no  obligations  beyond  those  which  were  there  in- 
dicated ;  that  to  permit  other  terms  to  be  imposed  on  the  shareholders  beyond 
the  conditions  of  incorporation,  would  lead  to  the  injury  of  the  shareholders,  and 
often  to  a  fraud,  or  at  least  surprise,  on  the  legislature  ;  and  that  to  render  special 
terms  binding  on  the  company,  they  ought  to  be  the  subject  of  special  clauses  m 
the  act,  whereby  the  whole  truth  could  be  disclosed.  See  Fry  on  Specif.  Per- 
form., 66 ;  Williams  v.  St.  G.'s  Harb.  Co.,  3  Jur.  N.  S.,  1014. 


§  84.  AGENT    NOT    IN    GENERAL    A    PROPER.    PARTY.  Ill 

§  84.  Agent  not  in  general  a  proper  party. — Contracts 
made  by  agents,  sometimes  give  rise  to  an  exception  to  the 
rule,  that  only  those  who  enter  into  the  contract  are  proper 
parties  to  the  suit.  When  the  agent  contracts  as  such,  in 
the  name  of  his  principal,  the  agent  ought  not  in  general  to 
be  made  a  party.'  A.,  as  the  agent  of  B.,  contracted  to  sell 
land  belonging  to  another,  who  afterward  adopted  the  sale. 
In  a  suit  to  enforce  specific  performance  against  the  owner 
of  the  land,  it  was  held  that  B.,  and  the  heirs  of  A.,  were 
improper  parties."  But  it  is  otherwise,  when  the  agent 
appears  on  the  face  of  the  agreement  as  a  principal,  or  there 
is  no  proof  of  the  agency,  or  there  are  special  circumstances 
rendering  it  proper  to  make  the  agent  defendant,  as  where 
he  claims  to  have  made  the  agreement  for  his  own  benefit.' 
If  the  agency  be  not  apparent  on  the  contract,  the  nominal 
contractor  should,  unless  the  plaintiff  can  prove  the  agency, 
be  made  a  party  to  the  suit  as  a  defendant.'  Where  the 
contract  is  made  with  an  agent,  and  is  under  seal,  in  a  suit 
for  specific  performance  by  the  principal,  the  defendant  has 
a  right  to  have  the  agent  made  a  party.'  In  a  suit  by  the 
vendor  of  land  sold  at  auction,  the  auctioneer  may  be  joined 
as  plaintiff,  on  the  ground  that  he  is  interested  in  the  con- 
tract, or  is  liable  for  the  deposit. °    In  general,  an  auctioneer 

'  Macnamara  v.  Williams,  6  Ves.,  143  ;  Smith  v.  Clarke,  12  lb.,  477  ;  King  of 
Spain  V.  De  Machado,  4  Russ.,  225  ;  Dahoney  v.  Hill,  20  Ind.,  264. 
*Roby  V.  Cossit,  78  111.,  638. 

*  Taylor  v.  Salmon,  4  M.  and  Cr.,  134.  See  Marshall  v.  Sladden,  7  Hare,  428 ; 
Lees  V.  Nuttall,  i  R.  and  M.,  53.  A  contract  under  seal  entered  into  by  A.  B. 
"in  behalf  of  the  city  of  Providence,"  but  signed  by  A.  B.,  who  was  Mayor  of  the 
city,  in  his  own  name,  was  held  not  the  contract  of  the  city,  but  of  A.  B.  per- 
sonally, and  a  demurrer  to  a  bill  for  specific  performance  filed  by  the  city  was 
sustained.     City  of  Providence  v.  Miller,  11  R.  L,  272. 

*  I  Danl.  Ch.  Pr.,  205  ;  Fulham  v.  McCarthy,  i  H.  L.  C,  703 ;  Chadwick  v. 
Maden,  9  Hare,  188.  In  Nelthorpe  v.  Holgate,  i  Coll.,  217,  ?,i8,  it  was  held  that 
an  agent  might  join  as  co-plaintiff. 

^  ^  Cooke  V.  Cooke,  2  Vern.,  36  ;  Cope  v.  Parry,  2  Jac.  and  W.,  538.  i  Danl. 
Ch.  Pr.,  4th  Am.  Ed.,  195. 

^  Jones  v.  Littledale,  6  A.  and  E.,  486 ;  Magee  v.  Atkinson,  2  M.  and  W.,  440. 
If  an  agent  in  his  own  name,  but  on  behalf  of  his  principal,  enters  into  an  agree- 
ment to  execute  a  lease  of  lands  of  his  principal,  he  will  be  personally  liable  for 
the  execution  of  the  same.  Norton  v.  Herron,  i  C.  and  P.,  648  ;  S.  C,  i  R.  and 
M.,  229 ;  Turner  v.  Christian,  29  Eng.  L.  and  Eq.,  103 ;  Lennard  v.  Robinson, 
32  lb.,  127  ;  Kennedy  v.  Gouveia,  3  Dowl.  and  Ryl.,  503  ;  Meyer  v.  Barker,  6  Binn, 


112  WHO  MAY  SUE  OR  BE  SUED.  §  85. 

holding  the  deposit  on  a  purchase,  should  not  be  made  a  de- 
fendant when  the  deposit  is  small,  unless  he  refuses  to  pay 
it  into  court  when  required.  But  when  the  deposit  is  a  con- 
siderable sum,  he  may  be  made  a  defendant  unless  he  has 
paid  it  into  court  before  suit  brought.' 

§  85.  When  agent  liable. — If  an  agent  contract  as  princi- 
pal, he  is  liable  on  the  contract  as  principal,  in  cases  of  spe- 
cific performance  in  equity,  as  well  as  of  damages  at  law.' 
"  It  is  competent  to  show  that  one  or  both  of  the  contract- 
ing parties  were  agents  for  other  persons,  and  that  they 
acted  as  such  agents  in  making  the  contract,  so  as  to  give 
the  benefit  of  the  contract  to,  and  charge  with  liability,  the 
unnamed  principal,  whether  the  agreement  is,  or  is  not,  re- 
quired to  be  in  writing  by  the  statute  of  frauds.  This  evi- 
dence in  no  way  contradicts  the  written  agreement.  It  does 
not  deny  that  it  is  binding  on  those  whom,  on  the  face  of 
it,  it  purports  to  bind  ;  but  shows  that  it  also  binds  another, 
by  reason  that  the  act  of  the  agent  in  signing  the  agree- 
ment in  pursuance  of  his  authority,  is  in  law  the  act  of  the 
principal.  But  on  the  other  hand,  to  allow  evidence  to  be 
given  that  the  party  who  appears  on  the  face  of  the  instru- 
ment to  be  personally  a  contracting  party,  is  not  such,  would 
allow  parol  evidence  to  contradict  the  written  agreement, 
which  cannot  be  done.'"     Where  the  contract  was  entered 

228,  234.  But  if  he  enter  into  a  written  contract  describing  himself  as  agent, 
and  naiTg'ng  his  principal,  he  is  not  personally  liable,  unless  he  had  no  authority 
to  make  the  contract,  or  in  making  it  exceeded  his  authority.  Downman  v. 
Jones,  9  Jur.,  454,  Ex.  Ch.  So,  although  a  person  without  authority  signs  an  in- 
strument in  the  name  of,  and  as  agent  for,  another,  he  cannot  be  treated  as  a 
party  to  such  instrument,  and  be  sued  upon  it,  unless  he  is  shown  to  have  been 
in  reality  the  principal.     Dart's  V.  and  P.,  85. 

'Earl  of  Egmont  v.  Smith,  L.  R.  6,  Ch,  D.  469. 

^  Jones  V.  Littledale,  6  A.  and  E.,  486 ;  Magee  v.  Atkinson,  2  M.  and  VV.,  440. 

^Higgins  V.  Senior,  8  M.  and  W.,  844.  In  Williams  v.  Chrislee,  4  Duer,  29, 
the  court,  per  Bosworth,  J.,  said :  "  We  consider  the  doctrine  well  settled,  that 
every  written  contract  made  by  an  agent,  in  order  to  be  binding  on  his  principal, 
must  purport  on  its  face  to  be  made  by  the  principal,  aiul  must  be  executed  in 
his  name,  and  not  in  the  name,  of  the  agent.  It  cannot  be  shown  by  parol,  that 
the  alleged  agent  in  signing  his  own  name  to  the  contract,  in  fact  signed  his 
name  as  agent,  and  thus  convert  a  contract  which,  on  its  face,  is  his  own, 
into  a  contract  of  his  alleged  principal,  and  make  it  enforceable  as  such.  This 
would  be  altering  the  plain  meaning  and  clear  legal  import  of  written  contracts, 


5  86.  LIABILITY    OF    PRINCIPAL.  II3 

into  by  the  agent  in  his  own  name,  and  he  urged  that,  as 
he  was  a  mere  agent,  the  bill  ought  to  be  dismissed  as 
against  him,  the  court  said  that  "  the  signing  of  the  agree- 
ment was  sufficient  to  subject  him  to  the  liability  of  per- 
forming it.'"  "  It  would  appear,  that  if  at  the  time  the 
contract  was  signed,  both  A.  and  B.  understood  that  A. 
was  acting  as  the  agent  of  C,  and  B.  were  afterward  to  sue 
A.  for  specific  performance  as  principal,  A.  might  allege 
the  understanding  between  himself  and  B.  at  the  time,  and 
give  parol  evidence  of  it,  and  that  if  the  allegation  were 
proved,  it  might  furnish  a  valid  defence,  though  the  circum- 
stances supposed  would,  of  course,  furnish  no  defence  at 
law,  unless  by  way  of  equitable  plea."" 

§  86.  Liability  of  principal  on  conti^act  of  agent. — 
Whether  where  a  person,  appearing  as  principal,  in  fact 
contracted  as  agent  for  another,  the  latter  can,  when  dis- 
closed, sue  or  be  sued  as  principal,  may  depend  upon  the 
consideration  as  to  whether  or  not  one  party  relied  on  the 
personal  qualifications  of  the  other.  If  in  a  contract  be- 
tween A.  and  B.  it  can  reasonably  be  presumed  that  B. 
relied  on  A.  personally,  A.  cannot  declare  himself  the 
agent  of  C.  in  the  transaction.  So,  if  A.  were  to  enter 
into  an  agreement  with  B.  for  the  purchase  from  him  of 
his  estate,  B.  could  not  aftCrward  announce  himself  as  the 
agent  of  C,  who,  not  having  the  estate,  could  not  perform 
the  contract.  It  is  said  to  hold  good  universally  that  a 
contracting  party  cannot  "  declare  himself  the  agent  of  an 
unnamed  principal,  except  where  the  contract,  if  really 
'made  by  the  contracting  party,  might  have  been  assigned 
by  him  to  the  party  suing  as  principal." '     Railway  directors 

by  unwritten  evidence,  which  is  inadmissible."  And  see  Minard  v.  Mead,  7 
Wend.,  68 ;  Spencer  v.  Field,  10  lb.,  88  ;  Evans  v.  Wells,  22  lb.,  337  ;  Stephens 
V.  Cooper,  i  Johns.  Ch.,  429;  Newcomb  v.  Clarke,  i  Denio,  226;  Fenly  v.  Stew- 
art, 5  Sandf ,  loi  ;  McTyer  v.  Steele,  26  Ala.,  487  ;  Matter  of  the  Bank  of  British 
North  America,  5  Gray,  567.  See,  however,  Huntingdon  v.  Kno^:,  7  Cush,,  371  ; 
Edwards  v.  Simmons,  27  Miss.,  302;  Ruiz  v.  Norton,  4  Cal.,  355. 

'  Chadwick  v.  Maden,  supra. 

^  Fry  on  Specif.  Perform.,  69,  70 ;  Higgins  v.  Senior,  supra. 

3  Fry  on  Specif.  Perform.,  68  ;  an/e,  §  72.  Where  a  party  to  a  contract  for 
8 


114  WHO  MAY  SUE  OR  BE  SUED.  §  8/. 

are  agents  of  the  company,  and  their  personal  liability  in  a 
suit  upon  a  contract  made  by  them  must  be  governed  by 
the  ordinary  law  of  principal  and  agent.  But  a  share- 
holder may  maintain  a  bill  against  directors  personally 
where  he  charges  them  as  trustees,  and  seeks  redress 
against  them  for  a  breach  of  duty  to  the  company  of  which 
he  is  a  member."  It  will  often  happen  that  a  suit  for 
specific  performance  against  an  agent  will  fail  from  his  in- 
capacity to  perform  the  subject  of  it.  No  one  person  can 
maintain  a  suit  for  the  specific  performance  of  a  public 
duty  imposed  for  the  public  benefit.' 

^  §  87.  Death  of  party  to  co7itract  who  was  its  induce- 
ment.— When  the  death  of  a  party  determines  the  interest 
(as  in  the  case  of  a  tenant  for  life,  or  of  one  who  has  a 
temporary  or  contingent  interest,  or  an  interest  defeasible 
upon  a  contingency),  and  there  is  no  other  plaintiff  or  de- 
fendant, there  is  an  end  to  the  suit.'  But  if  such  interest 
survives  to  the  remaining  party,  and  there  is  no  demand 
against  the  representatives  of  the  deceased,  the  proceed- 
ings do  not  abate.*  When  the  moving  inducement  to  the 
contract  was  the  learning,  genius,  skill,  taste,  or  other  per- 
sonal qualification  of  one  of  the  parties,  his  death  dis- 
charges the  contract,  and  no  liability  attaches  to  his  per- 
sonal representatives  for  non-performance  after  his  decease  ; ' 
the  personal  services  of  an  individual  being  incapable  of 
performance  by  another,  either  before  or  after  his  death.' 
If  an  author  agrees  to  write  a  work,  and  dies  previous  to 
completion,  the  contract   cannot   be   enforced   against  his 

the  purchase  of  land  acted  not  only  for  himself,  but  for  his  co-plaintiff,  it  was 
held  that  the  latter  was  entitled  to  the  benefit  of  the  contract  sought  to  be  en- 
lorced.     Washburn  v.  Fletcher,  42  Wis.,  152. 

'  Ferguson  v.  Wilson,  L.  R.  2,  Ch.  T] . 

"^  Getty  V.  Hudson  River  R.R.  Co.,  2  Barb.,  617, 

'  Story's  Eq.  PI.,  Sec.  356. 

^  Ibid,  Sec.  357.  In  Iowa,  under  the  statute  either  party  may  come  into  court 
to  enforce  the  contract,  or  the  administrator  may  ask  for  power  to  make  the 
conveyance.     Collins  v.  Vandever,  i  Iowa,  573. 

''  Siboni  v.  Kirkman,  i  M.  &  W^,  423. 

*  Clark  V.  Gilbert,  32  Barb.,  581.     See  ante,  %  72. 


§  87.         DEATH  OF  PARTY  TO  CONTRACT.  II5 

executors/  So,  where  a  master  who  has  engaged  to  in- 
struct an  apprentice,  dies  before  the  end  of  the  term,  his 
representatives  will  be  excused/  The  same  principle  was 
held  applicable  to  an  agreement  to  build  a  lighthouse,  the 
construction  of  which  called  for  science  and  skill/ 

'  Marshall  v.  Broadhurst,  i  Tyrvv.,  349;  S.  C.  I,  Crompt.  &  Jer.,  405. 
*  Baxter  v.  Burfield,  2  Str.,  1266. 
Wentworth  v.  Cock,  10  Ad.  &  E.,  45. 


CHAPTER    II. 

PLEADINGS. 

88.  Must  appear  that  there  is  no  remedy  at  law. 

89.  Incumbent  on  plaintiff  to  show  affirmatively  that  he  is  entitled  to  relief. 

90.  Case  to  be  set  out  with  cleamess. 

91.  Must  be  shown  that  contract  is  capable  of  being  enforced. 

92.  In  case  of  agency. 

93.  How  contract  should  be  averred. 

94.  Description  of  land. 

95.  Averment  of  consideration. 

96.  Plaintiff  must  allege  performance. 

97.  Averment  of  demand  and  refusal. 

98.  Injury  must  be  alleged. 

99.  Must  be  a  prayer  for  relief 
100.  Cross  bill  when  to  be  filed. 

loi.  Where  the  answer  sets  out  a  different  contract. 

102.  Demurrer  in  case  of  agreement  within  the  statute  of  frauds, 

103.  Objecting  statute  of  frauds  by  plea  or  answer. 

104.  Defence  that  wife  did  not  join  in  contract. 

105.  Where  new  matter  is  set  up  not  responsive  to  bill. 

§  88.  M7Lst  show  that  thci'c  can  be  no  redress  at  law. — 
Unless  the  bill,  answer,  and  exhibits  render  clear  the  rights 
of  the  parties  seeking  specific  performance,  a  decree  will  be 
refused.'  It  is  incumbent  upon  the  plaintiff  to  show  that 
he  cannot  be  indemnified  in  damages  for  the  breach  of  the 
contract ;'  and  if  he  omit  to  allege,  or  it  does  not  appear 
from  the  facts  disclosed  in  the  bill,  that  he  has  not  a  com- 
plete remedy  at  law,  the  defendant  may  demur  to  the  bill 

'  Waters  v.  Brown,  7  J.  J.  Marsh,  123.  To  entitle  the  plaintiff  to  show  fraud 
in  the  defendant  as  the  ground  of  a  decree  for  the  specific  performance  of  an 
agreement,  it  must  be  substantially  alleged  in  the  bill.  Sawyer  v.  Mills,  20  L.  J. 
Ch.,  80  ;  Hayward  v.  Purssey,  3  De  G.  &  Sm.,  399  ;  Crocker  v.  Higgins,  7  Conn., 
34;  Booth  V.  Booth,  3  Litt.,  57  ;  Miller  v.  Colton,  5  Ga.,  346  ;  Governeur  v.  El- 
mendorf,  5  Johns.  Ch.,  79 ;  Magniac  v.  Thomson,  2  Wall,  Jr.,  209.  If  there  be 
unfounded  allegations  of  fraud,  or  no  averment  of  fraud  or  injury,  this  circum- 
stance may  be  taken  into  account  by  the  court  in  determining  whether  or  not  to 
grant  the  relief  asked.  Price  v.  Berrington,  3  M.  &  G.,  486;  Eyre  v.  Potter,  15 
How.,  56;  Fisher  V.  Boody,  i  Curtis,  211  ;  Ellerbe  v.  Ellerbe,  42  Ala.,  643. 

*  Powell  V.  Central  Plank  Road  Co.,  24  Ala.,  441  ;  McClane  v.  White,  5  Minn., 
178.     But  see  ante,  §  5. 


§  89.       WHEN    PLAINTIFF    IS    ENTITLED    TO    A    DECREE.  II7 

on  that  ground.'  But  in  a  suit  for  the  specific  performance 
of  a  contract  for  the  sale  of  land,  the  complainant  may 
shape  his  bill,  either  to  obtain  specific  performance  or  a  can- 
celment  of  the  contract,  even  though  he  might  have  had  an 
action  at  law  on  the  covenant.""  A  bill  to  compel  a  vendee 
to  pay  the  purchase  money  may  sometimes  be  sustained  in 
equity  ;  but  not  where  it  alleges  only  the  facts  ordinarily 
set  forth  in  a  declaration  in  debt,  covenant,  or  assumpsit, 
in  a  suit  at  law"  for  the  purchase  money.'  Where  land  is 
sold  under  an  order  of  the  court,  and  the  purchaser  signs  an 
acknowledgment  of  the  purchase,  and  fails  to  complete  it, 
the  officer  making  the  sale,  who  is  the  only  necessary  party 
complainant,  may  file  a  bill  for  specific  performance  with- 
out the  direction  of  the  court,  and  it  will  not  be  a  ground 
of  demurrer  that  the  purchaser  might  have  been  compelled 
to  abide  by  his  contract  by  attachment  for  contempt.' 

§  89.  Must  appear  from  bill  that  plaintiff  is  entitled  to 
a  decree. — To  entitle  a  complainant  to  a  decree  for  specific 
performance,  he  must  show  affirmatively  that  he  ought  to 


^  Botsford  V.  Beers,  11  Conn.,  369;  Prewitt  v.  Jenkins,  i  Blackf.,  294;  Noyes 
V.  Marsh,  123  Mass.,  286;  ante,  §  9.  Where  the  plaintiff  averred  a  sale  at  a 
stipulated  sum,  increased  by  a  contingency  alleged  to  have  happened,  and  prayed 
for  a  decree  for  the  balance  unpaid,  his  bill  was  dismissed  on  the  ground  that  he 
had  a  competent  remedy  at  law.     Kauffman's  Appeal,  55  Pa.  St.,  383. 

2  Mills  V.  Metcalf,  i  A.  K.  Marsh,  477.  A  bill  which  seeks  specific  perform- 
ance must  be  framed  with  that  view.  Pitts  v.  Cable,  44  111.,  103.  Under  the 
statute  of  Massachusetts  of  1853,  Ch.  371,  an  action  for  relief  in  equity  to  enforce 
the  specific  performance  of  a  contract  is  to  be  treated  as  a  suit  in  equity.  Irvin 
V.  Gregory,  13  Gray,  215. 

.'  Kauffman's  Appeal,  supra. 

^  Bowne  v.  Ritter,  26  N.  J.  Eq.,  456.  When  property  is  sold  pursuant  to  an 
order  of  court,  the  usual  method  of  compelling  a  purchaser  to  complete  his  pur- 
chase, is  by  an  order  to  show  cause  why  an  attachment  should  not  issue  against 
him  as  for  contempt.  But  the  parties  in  interest  may,  if  they  see  fit,  file  a  bill 
for  specific  performance  ;  and  sometimes  the  court  will  itself,  in  a  case  of  doubt, 
and  where  the  ends  of  justice  will  be  served  by  it,  direct  that  to  be  done.  But 
the  fact  that  the  bill  was  filed  without  the  direction  of  the  court,  cannot  be  ob- 
jected by  the  defendant.  Ibid.  See  Brasher  v.  Cortlandt,  2  Johns.  Ch.,  505  ; 
Wood  v.  Mann,  3  Sumner,  318;  Gordon  v.  Saunders,  2  McCord  Ch.,  151  ;  Ely 
V.  Perrine,  2  N.  J.  Eq.  ;  i  Green,  396;  Cazet  v.  Hubble,  36  N.  Y.,  677  ;  Silver  v. 
Campbell,  25  N.  J.  Eq. ,  465.  Under  special  circumstances,  a  receiver  has  been 
appointed  as  between  a  vendor  and  purchaser  during  a  suit  for  specific  perform- 
ance. Hall  V.  Jenkinson,  2  Ves.  and  B.,  125  ;  Boehm  v.  Wood,  2  J.  and  W., 
236  ;  Shakel  v.  Marlborough,  4  Mad.,  463. 


Il8  PLEADINGS.  §  89. 

have  relief ;'  but  he  need  not  allege  the  defendant's  ability 
to  perform."  The  bill  should  state  the  case  with  reasonable 
certainty  and  precision,  and  contain  every  averment  requi- 
site to  entitle  the  plaintiff  to  the  relief  asked  ;  as  a  defect  in 
this  respect  cannot  be  supplied  by  inference.'  Where  sev- 
eral are  joined  as  plaintiffs,  if  the  bill  shows  that  their 
claims  are  inconsistent,  or  if  any  of  them  have  no  claim,  the 
misjoinder  will  either  be  fatal  to  the  suit,  or  the  court  will 
only  make  such  a  decree  as  will  leave  their  claims,  in' respect 
to  each  other,  undecided."  But  if  one  of  several  plaintiffs, 
who  are  properly  joined,  claims  further  relief  peculiar  to 
himself,  it  is  not  a  ground  for  demurrer.'  If  there  be  an 
averment  of  a  devise,  a  will  in  writing  must  be  alleged."  So, 
in  the  case  of  a  grant,  a  deed  must  be  alleged."  But  public 
statutes  and  other  matters,  of  which  the  court  takes  judicial 
notice,  need  not  be  set  forth."  A  bill  which  shows  that  the 
contract  sought  to  be  enforced  is  within  the  statute  of 
frauds,  is  demurrable."     But   although  a  bill  which  prays 


'  Morey  v.  Farmer's  Loan,  etc.,  14  N.  Y.,  302  ;  Clough  v.  Hart,  8  Kansas,  487. 
In  equity  "  the  object  aimed  at  is  a  complete  decree  on  the  general  merits,  and 
not  that  the  litigation  should  be  reduced  to  a  single  issue  ;  and  as  all  issues, 
whether  of  law  or  fact,  are  decided  or  adjusted  for  decision  by  the  court,  it  is  not 
essential  to  keep  them  strictly  distinct.  The  rules,  therefore,  of  pleading  are  less 
stringent  than  at  law ;  but  they  are  equally  regulated  by  principle."  Adam's 
Eq.,  301. 

^  Greenfield  v.  Carlton,  30  Ark  ,  547.  See  Morrow  v.  Lawrence,  7  Wis.,  574, 
as  to  sufficiency  of  complaint  in  an  action  to  compel  a  conv^eyance. 

^  Hammond  v.  Messenger,  9  Sim.,  327  ;  Wright  v.  Dame,  22  Pick.,  55  ;  M'ln- 
tyre  v.  Trustees  of  Union  College,  6  Paige  Ch.,  239  ;  Cowles  v.  Buchanan,  3 
Ired  Eq.,  374. 

■*  Adam's  Eq.,  301  ;  Cholmondeley  v.  Clinton,  T.  and  R.,  107  ;  Thurman  v. 
Shelton,  10  Yerg.,  383  ;  Mix  v.  Hotchkiss,  14  Conn.,  32  ;  Ellicott  v.  Ellicott,  2 
Md.  Ch.,  468.     Ante,  §  55. 

^  Clarkson  v.  De  Peyster,  3  Paige  Ch.,  320. 

°  See  Belloat  v.  Morse,  2  Hayw.,  157  ;  Martin  v.  M'Bryde,  3  Ired  Eq.,  531  ; 
Van  Cortlandt  v.  Beekman,  6  Paige  Ch.,  492. 

'  See  King  v.  Trice,  3  Ired.  Eq.,  568. 

"  U.  S.  V.  La  Vengeance,  3  Dallas,  297 ;  Owings  v.  Hall,  9  Peters,  607. 

"  Chambers  v.  Lecompte,  9  Mo.,  575.  If  the  bill  shows  on  its  face  that  the 
case  is  within  the  statute-  of  limitations,  the  plaintiff  should  state  the  facts  and 
circumstances  upon  which  he  relies  to  take  the  case  out  of  the  operation  of  the 
statute.  Dunlap  v.  Gibbs,  4  Yerg.,  94  ;  Wisner  v.  Barnet,  4  Wash.  C.  C,  631  ; 
Field  V.  Wilson,  6  B.  Mon.,  479  ;  Humbert  v.  Rector  of  Trinity  Ch.,  7  Paige  Ch., 
197  ;  Maxwell  v.  Kennedy,  8  How.,  210. 


§  90-  WHAT    TO    BE    PUT    IN    ISSUE    BY    BILL.  II9 

for  the  specific  performance  of  a  parol  contract  to  convey 
land,  or  a  repayment  of  the  purchase  money,  will  not  ordi- 
narily be  sustained,  yet  in  such  a  case,  where  land  w^as  paid 
for  by  the  bond  of  a  third  person  indorsed  to  the  vendor, 
who  obtained  judgment  thereon,  the  court  ordered  an  as- 
signment of  the  judgment  to  the  purchaser  on  his  filing  a 
bill  for  specific  performance.' 

§  90.  What  to  be  put  in  issue  by  bill. — In  a  suit  for  spe- 
cific performance,  "great  accuracy  of  averment,  and  strict 
corresponding  proof  are  required."  *  The  plaintiff  should 
therefore  set  out  his  case  with  such  clearness,  that  the 
court  can  readily  see  the  grounds  upon  which  he  relies.' 
When  a  waiver  of  objection  to  title  is  the  ground  relied  on 
for  specific  performance,  that  question  must  be  put  in  issue 
by  the  bill,  or  evidence  will  not  be  received  to  prove  a 
waiver.*  Although  the  plaintiff  need  not  state  conclusions 
of  law^  derived  from  the  facts  set  out,  yet  it  has  been  held 
that  when  the  vendor  intends  to  rely  upon  the  waiver  by 
the  purchaser  of  his  right  to  a  marketable  title,  he  must 
charge  such  waiver,  and  that  it  is  not  enough  to  allege 
facts.  At  the  same  time,  it  would  be  improper  to  aver  a 
waiver  without  stating  the  facts.*  A  bill  seeking  to  enforce 
the  specific  performance  of  a  contract  for  the  sale  of  land, 
which  shows  on  its  face  that  one  of  the  defendants  through 
whom  the  plaintiff  does  not  deduce  his  title,  holds  the  legal 
title  to  the  land  by  patent  from  the  United  States,  must 


'  Ellis  V.  Ellis,  I  Dev.  Eq.,  398. 

^Daniel  v.  Collins,  57  Ala.,  625,  per  Stone,  J. 

^Hunter  v.  Daniel,  4  Hare,  420;  Forsythe  v.  Clark,  3  Wend  ,657.  The  con- 
tract must  be  fully  and  particularly  stated  so  that  it  may  appear  to  the  court  to 
possess  the  elements  of  fairness,  mutuality,  and  certainty;  unless  the  complain- 
ant, being  a  stranger  to  the  contract,  has  no  full  and  particular  knowledge  of  its 
terms,  and  where  defects  in  the  averments  may  be  supplied  by  the  proof.  Light 
Street  Bridge  Co.  v.  Bannon,  47  Ind.,  129. 

*  Page  V.  Greeley,  75  III.,  400. 

^Clive  V.  Beaumont,  i  De  G.  &  S.,  397  ;  Gaston  v.  Frankum,  2  lb.,  561.  The 
court  will  not  set  aside  a  decree  for  the  specific  performance  of  a  contract  of 
purchase  on  account  of  defects  in  the  petition,  where  the  jury  from  the  evidence 
in  the  case  have  found  a  contract,  and  a  decree  has  been  made.  Despain  v.  Car- 
ter, 21  Mo.,  331. 


I20  PLEADINGS.  §§  QI,  92. 

also  show  that  the  legal  title  is  subordinate  to  the  equitable 
title  under  which  the  plaintiff  claims.'  Where  suit  is 
brought  to  recover  damages  against  heirs  and  to  enforce 
the  specific  perfoiTnance  of  their  ancestor's  contract  to  con- 
vey, the  plaintiff  must  aver  and  prove  that  the  estate  is 
not  in  jprocess  of  administration,  and  that  assets  of  the 
ancestor  have  come  into  the  defendant's  hands.'  But  a 
bill  by  the  vendee  of  land  praying  a  specific  performance 
against  the  heirs  need  not  allege  that  the  vendor  died 
seized,  or  that  the  title  is  in  the  defendants.' 
^j^  §91-  To  be  show7i  that  contract  can  be  enforced. — To 
entitle  a  complainant  to  the  specific  performance  of  a  con- 
tract, it  must  appear  that  the  contract  can  be  fairly  and 
effectually  carried  out.*  Where  a  bill  to  enforce  a  deed  of 
trust  showed  on  its  face  that  the  deed  had  been  recorded, 
so  as  to  give  it  priority  over  a  docketed  judgment,  but  the 
acknowledgment  was  not  in  conformity  with  the  statute, 
and  the  bill  was  opposed  by  the  judgment  creditor,  it  was 
held  that  the  court  would  take  notice  of  the  defect,  though 
the  objection  was  not  taken  in  the  answer.* 

§92.  When  party  acted  as  agent. — Where  the  contract 
sought  to  be  enforced  was  made  by  an  agent,  the  bill  must 
show,  either  by  averment,  or  by  the  contract  as  set  out,  that 
the  person  executing  the  same  was  the  agent  of  the  owner, 
duly  authorized."     But  the  mode  of  execution  need  not  be 


'Cameron  v.  Abbott,  30  Ala.,  415. 

"Taylor  v.  Rowland,  26  Texas,  293.  One  of  the  distributees  of  an  estate  as- 
signed to  the  plaintiff  all  his  interest  in  the  undivided  assets.  Held,  that  to 
entitle  the  plaintiff  to  specific  performance,  his  bill  must  show  that  such  dis- 
tributee, at  the  time  of  the  assignment,  had  an  interest  in  the  undi\aded  assets, 
and  furnish  the  data  from  which  such  interest  might  be  ascertained.  Bogan  v. 
Camp,  30  Ala.,  276. 

^  Moore  v.  Burrows,  34  Barb.,  173.  In  Pennsylvania,  by  the  statute  of  Feb. 
24th,  1834,  a  proceeding  was  provided  to  enforce  contracts  made  by  a  decedent 
for  the  sale  o(  land,  by  a  petition  in  the  Orphan's  Court.  See  Weller  v.  Wey- 
and,  2  Grant  Pa.  Cas.,  103. 

*May  V.  Fenton,  7  J.  J.  Marsh,  306.     Steposf,  Book  3,  Chs.  1  &  2. 

^Peacock  v.  Tompkins,  i  Humph.,  135. 

*Roby  w  Cossitt,  78  111.,  638;  Columbine  v^  Chichester,  2  Phil.,  27.  Contra, 
Harding  v.  Parshail,  56  111.,  219;  Fisher  v.  Bowser,  41  Texas,  222. 


§  93-  STATING    CONTRACT.  121 

alleged  ; '  nor  the  manner  in  which  the  principal  ratified  the 
agreement.' 

§  93.  Stating  contract. — The  material  terms  of  the  con- 
tract sought  to  be  enforced  should  be  alleged.'  Where  the 
written  memorandum  of  a.  contract  under  which  the  de- 
fendants obtained  money  from  the  complainants,  to  be  in- 
vested in  land  for  the  benefit  of  the  latter,  is  lost,  a  bill 
setting  out  the  contract,  and  praying  specific  performance, 
or  a  return  of  the  money,  and  also  seeking  a  disclosure  of 
the  contents  of  the  memorandum,  presents  a  case  for  equi- 
table relief.'  When  the  object  of  the  bill  is  to  charge  par- 
ticular defendants,  the  complainant  must  show  a  case 
against  them  by  proper  averments.  But  when  persons  are 
made  parties  merely  because  they  have  or  claim  an  interest 
in  the  property,  it  is  enoitgh  for  the  plaintiff  to  show  his 
own  rights,  and  allege  the  fact  that  others  claim  an  interest. 
The  allegation  that  they  have  or  claim  an  interest  is  suffi- 
cient ground  for  relief  against  them,  which  in  such  case  is 
nothing  more  than  asking  an  adjudication  of  such  rights  as 
they  may  assert.'  Several  owners  of  distinct  parcels  of 
land,  by  one  written  instrument  severally  agreed  to  convey 
their  respective  lots  to  the  same  person.  On  a  bill  filed  by 
the  vendee  for  specific  performance  of  the  contract  against 
one  of  such  owners,  it  was  held  no  objection  that  the  agree- 
ment was  set  out  as  made  between  the  complainant  and 
the  defendant.'     W^hen  the  plaintiff  alleges  that  the   con- 


'Hanchett  v.  McQueen,  32  Mich.,  22, 

"^  Harding  v.  Parshall,  supra.  See  Gilpin  v.  Watts,  i  Col.,  479.  An  alle- 
gation in  a  bill  for  the  specific  performance  of  an  agreement  to  convey  land, 
that  the  defendant  purchased  the  land  as  the  plaintiff's  agent,  and  with  his 
money,  thus  holding  it  in  trust  for  the  plaintiff,  is  not  objectionable.  Gerrish  v. 
Towne,  3  Gray,  82. 

^Anthony  v.  Leftwitch,  3  Rand,  Va.,  238  ;  Gaskins  v.  Peebles,  44  Texas,  390. 
In  a  suit  for  the  specific  performance  of  a  parol  agreement  for  the  sale  of  land, 
the  consideration  for  the  agreement,  the  time  and  manner  of  its  performance, 
and  all  of  its  essential  terms,  must  be  clearly  and  definitely  alleged  as  well  as 
proved.     Jones  v.  Jones,  49  Texas,  683. 

'' Wiley  V.  Mullins,  22  Ark.,  294.  ^Seager  v.  Bums,  4  Minn.,  141. 

New  Barbadoes  Toll  Bridge  v.  Vreeland,  4  N.  J.  Eq.,  1 57. 


122  PLEADINGS.  §  94. 

tract  was  in  writing,  he  need  not  aver  that  it  was  signed.' 
But  it  has  been  held  that  merely  alleging  that  there  was  a 
contract,  would  he  tantamount  to  averring  a  verbal  agree- 
ment ;  and  that  where  the  contract  is  required  to  be  in 
\yriting,  unless  from  the  rest  of  the  pleadings  a  WTitten 
contract  must  necessarily  be  presumed,  the  bill  will  be  bad 
on  demurrer.'  It  was  said,  however,  by  an  eminent  judge, 
that  "  if  it  is  stated  generally  that  an  agreement  or  con- 
tract was  made,  the  court  will  presume  it  a  legal  contract, 
until  the  contrary  appears  ;  and  the  defendant  must  either 
plead  the  fact  that  it  was  not  in  writing,  or  insist  upon  his 
defence  in  the  answer."  ' 

§  94.  How  land  should  be  descidbed. — In  a  bill  for  the 
specific  performance  of  a  contract  to  convey,  the  land  must 
be  described  wnth  at  least  sufficient  accuracy  to  enable  the 
court  to  ascertain  the  property  by  ordering  a  survey.* 
Where  a  w^idow  filed  a  bill  against  her  husband's  devisees 
and  representatives  for  the  specific  performance  of  an  ante- 
nuptial agreement  to  settle  on  her  "  a  plantation  and  per- 
manent home  for  life,"  it  was  held  that  the  bill  must  dis- 
tinctly set  forth  what  land,  where  situate,  the  number  of 
acres,  etc."  A  bill  which  alleged  that  the  defendant  prom- 
ised to  give  a  mortgage  to  secure  notes  of  his  due  to  the 
complainant  w^as  held  too  vague  and  indefinite,  as  there  was 
no  specification  of  the  property  to  be  mortgaged.'  And 
where  the  grant  was  described  by  the  length  of  the  sides 

1  Barkworth  v.  Young,  4  Drew,  i  ;  Field  v.  Hutchinson,  i  Beav.,  599  ;  Rist  v. 
Hobson,  I  Sim,  &  Stu.,  543  ;  i  Danl.  Ch.  Pr.,  4th  Am.  Ed.,  365. 

-Barkworth  v.  Young,  4  Drew,  i  ;  Whitechurch  v.  Bevis,  2  Bro.  C.  C,  559; 
Spurrier  v.  Fitzgerald,  6  Ves.,  555  ;  Logan  v.  Bond,  13  lb.,  192  ;  Piercy  v.  Adams, 
22  Ga.,  109  ;  Carlisle  v,  Brennan,  67  Ind.,  12. 

^  Chancellor  Walworth,  in  Cosine  v.  Graham,  2  Paige  Ch.,  177.  See  Wildbahn 
V.  Bobidoux,  11  Mo.,  659  ;  Richards  v.  Richards,  9  Gray,  314  ;  Cranston  v.  Smith, 
6  R.  I.,  231  ;  Farnham  v.  Clements,  51  Me.,  426;  Dudley  v.  Bachelder,  53  lb., 
403  ;  Hubbell  v.  Courtney,  5  S.  C,  87.  Specific  performance  of  an  agreement 
which  differs  materially  from  the  one  set  out  in  the  bill,  will  not  be  decreed. 
Harris  v.  Knickerbacker,  5  Wend.,  638. 

^  Gray  v.  Davis,  3  J.  J.  Marsh,  381  ;  Allen  v.  Chambers,  4  Ired.  Eq.,  125. 

"  Mallory  v.  Mallory,  i  Busb.  N.  C.  Eq.,  80. 

"  Sanderson  v.  Stockdale,  1 1  Md.,  563. 


§§  95'  9^-  TERFORMANCE  MUST  BE  AVERRED.  123 

and  bearing  trees,  it  was  held  insufficient  to  sustain  a  decree, 
as  there  was  no  evidence  to  show  that  the  bearing  trees 
were  at  the  places  alleged,  and  they  constituted  the  con- 
trolling part  of  the  description/  But  a  description  of  the 
land  by  a  well-known  name,  in  such  a  way  as  to  distinguish 
the  premises  from  other  property,  will  be  sufficient."  Where 
the  plaintiff,  who  was  an  administrator,  described  the  land 
to  be  conveyed  simply  "  as  the  lot  of  land  containing  four- 
teen acres,  more  or  less,  which  lies  on  the  northerly  side  of, 
and  adjoining  the  estate  now  or  formerly  owned  by  J.  S., 
in  the  town  of  A.,"  it  was  held  no  ground  for  demurrer  to 
the  bill.'  Either  party  may  plead  and  prove  a  mistake  in 
the  description  of  the  land  in  a  contract  sought  to  be  spe- 
cifically enforced." 

§  95.  Stating  consideration. — A  bill  filed  to  enforce 
specific  performance  of  a  written  contract  for  the  convey- 
ance of  land,  in  which  the  entire  consideration  is  not  ex- 
pressed, need  not  set  forth  that  part  of  the  consideration 
which  was  omitted.  In  such  case  it  is  sufficient  to  entitle 
the  plaintiff  to  maintain  his  suit,  that  he  is  willing  and 
ready  to  pay  the  whole  amount  orally  agreed  upon  by  the 
parties,  and  has  been  guilty  of  no  misconduct."  Where  a 
vendor  seeks  to  enforce  specific  performance  by  a  sale  of  the 
land  and  application  of  the  proceeds  to  the  satisfaction  of 
the  consideration,  he  should  allege  in  his  bill  that  the  de- 
fendant promised  or  agreed  to  pay  the  consideration.' 

§  96,  Performance  must  be  averred. — The  bill  must  show 
that  the  complainant  has  done  everything  necessary  to  en- 
title him  to  performance  of  the  contract  by  the  defendant, 
and  that  there  is  a  demand  on  the  other  party  uncomplied 
with.'     The   plaintiff  should  allege  the  facts  constituting 


'  Bast  V.  Alford,  20  Texas,  226.  ^  Goodenow  v.  Curtis,  18  Mich.,  29S, 

^  Baker  v.  Hathaway,  5  Allen,  103.  ^  Abbott  v.  Dunivin,  34  Mo.,  148. 

'  Park  V.  Johnson,  4  Allen,  259.  "  Capehart  v.  Hall,  6  West  Va.,  547. 

^  Bates  V.Wheeler,  2  111.  (i  Scam.),  54;  Underhill  v.  Allen,  18  Ark.,  466  ; 
Brown  v.  Hayes,  33  Ga.  Supp.,  136;  McLeroy  v.  Tulane,  34  Ala.,  78  ;  Bell  v. 
Thompson,  lb.,  633  ;  Columbine  v.  Chichester,  supra. 


124  PLEADINGS.  §  96. 

performance  on  his  part,  so  that  the  court  may  judge 
whether  he  has  done  what  he  ought.  Therefore,  a  general 
averment  that  he  has  "  done  all  that  he  was  bound  by  the 
contract  to  do,"  is  not  sufficient ;'  nor  an  allegation  that  he 
has  "  offered,  and  has  always  been  ready  and  willing  to 
comply  with  his  contract.'"  So,  where  the  plaintiff  alleged 
repeated  tender  of  payment,  and  that  he  always  had  been 
and  still  was  ready  to  pay,  the  bill  was  held  objectionable 
for  want  of  particularity.'  Where  the  vendor  of  land 
stipulated  to  deliver  to  the  purchaser  the  patents  thereof 
on  their  issue,  it  was  held  in  a  suit  to  enforce  the  contract 
of  purchase  that  the  vendor  ought  to  aver  and  prove  the 
issue  of  the  patents  not  delivered."  A  bill  for  the  specific 
performance  of  a  contract  to  convey  ten  lots,  which  alleged 
a  tender  of  eight  whole  lots,  and  of  an  equal  undivided 
half  of  four  other  lots,  was  dismissed  on  demurrer,  on  the 
ground  that  it  failed  to  show  a  performance  on  the  part  of 
the  plaintiff.'  Where  a  vendee  brings  a  suit  for  the  specific 
performance  of  a  contract  for  the  sale  of  land  against  the 
vendor,  the  bill  must  allege  a  tender  of  the  purchase  money 
when  it  became  due,  a  readiness  to  pay  it  at  any  time  since, 
and  an  offer  to  bring  the  same  into  court.'  An  allegation 
in  the  bill,  that  the  defendant  took  possession  under  the 
contract,  is  equivalent  to  an  averment  that  the  plaintiff 
gave  possession.'  Where  payment  of  the  purchase  money, 
possession,  and  the  making  of  valuable  and  lasting  im- 
provements by  the  purchaser,  are  relied  on  as  grounds  for 
the  specific  performance  of  a  parol  contract  for  the  sale  of 
land,  the  bill,  in  addition  to  these  matters,  must  show  that 
possession  was  taken  under  the  contract  with  the  knowl- 
edge and  consent  of  the  vendor,  and  that  the  purchaser  is 
ready  to  pay  the  residue  of  the  purchase  money  on  obtain- 


'  Davis  V.  Harrison,  4  Litt.,  261.  "  Hart  v.  McClellan,  41  Ala.,  251. 

•^  Duff  V.  Fisher,  15  Cal.,  375.  ''  Low  v.  Heck,  3  West  Va.,  680. 

*  Roy  V.  Willink,  4  Sandf.  Ch.,  525.  *  Bass  v.  Gilliland,  5  Ala.,  761. 
'  Harris  v.  Knickerbocker,  5  Wend.,  638. 


§  97'       AVERMENT  OF  DEMAND  AND  REFUSAL.        T25 

inga  decree,  or  receiving  a  deed  for  the  land.'  A  hill  for 
specific  performance  which  alleged  that  the  purchase  money- 
had  all  been  paid,  and  also  offered  to  pay  whatever  sum 
might  be  found  due,  was  held  sufficient,  though  the  proof 
showed  that  part  of  the  purchase  money  was  still  due." 
Where  a  complainant,  in  a  suit  to  enforce  the  specific  per- 
formance of  a  contract  in  which  the  acts  to  be  done  by  the 
plaintiff  and  defendant  are  mutual  and  concurrent,  alleges 
an  offer  to  perform  by  the  plaintiff,  and  a  refusal  by  the 
defendant,  it  is  sufficient.'  If  consent  is  necessary  to  enable 
the  plaintiff  to  perform  the  contract,  he  need  not  allege 
that  such  consent  was  obtained." 

§  97.  Averment  of  demand  and  refttsal. — Where  a  suit 
is  brought  to  enforce  an  obligation  to  convey  absolute  on 
its  face,  and  acknowledging  the  consideration,  it  is  only 
necessary  to  aver  a  request,  and  a  refusal  to  convey.'  The 
purchaser  should  state  in  his  bill,  that  he  has  requested  the 
vendor  to  make  title,  or  show  some  excuse  for  not  doing 
so.  An  allegation  that  the  vendor  is  insolvent  is  not  suffi- 
cient to  excuse  the  necessity  of  such  request.*  A  complaint 
to  compel  the  execution  of  a  deed,  alleged  payment  of  the 
purchase  money,  and  a  conveyance  to  the  defendants  as 

'  Moore  v.  Higbee,  45  Ind.,  487.  Where  the  complainant  sought  to  compel  a 
conveyance  on  two  grounds  :  ist,  that  the  deceased,  whose  representatives  were 
defendants,  had  purchased  the  real  estate  at  a  sheriffs  sale,  and  had  agreed 
with  the  plaintiff,  at  the  time  of  the  sale,  to  hold  the  land  in  trust  for  the  plain- 
tiff; 2d,  that  the  plaintiff  had  re-purchased  the  land  from  the  deceased,  and 
taken  possession,  agreeing  to  make  improvements,  pay  taxes,  and  repay  the 
purchase  money,  and  had  done  acts  in  part  performance  sufficient  to  entitle  him 
to  a  decree,  it  was  held  that  although  the  allegation  as  to  the  trust  was  insuffi- 
cient, yet  that  the  facts  stated  warranted  a  decree.  Pearson  v.  East,  36  Ind., 
27.     See  Hauser  v.  Roth,  37  Ind.,  89. 

^  Mix  V.  Beach,  46  111.,  311.  A  bill  for  the  specific  performance  of  a  contract 
to  convey,  which  alleges  a  partial  performance  on  the  part  of  the  plaintiff,  need 
not  formally  allege  a  readiness  to  complete  the  performance.  Hatcher  v. 
Hatcher,  i  McMullan  Ch.,  311. 

^  St.  Paul  Division  V.  Brown,  9  Minn.,  157.  Where  the  plaintiff  neglects  to 
allege  that  he  has  performed,  or  is  willing  and  ready  to  perform,  as  such  an 
omission  is  a  mere  defect  in  form,  his  bill  may  be  amended.  Chess's  Appeal,  4 
Pa.  St.,  52. 

*  Smith  V.  Capron,  7  Hare.  185. 

^  Fonnger  v.  Welch,  22  Texas,  417  ;  Holman  v.  Criswell,  15  lb.,  394. 

'  Carter  v.  Thompson,  41  Ala.,  375. 


126  PLEADINGS.  §§  98-IOO, 

security  to  them  for  a  debt ;  that  the  defendants  were  to 
re-convey  to  the  plaintiff  when  the  debt  was  paid  ;  that 
such  payment  was  made,  and  a  conveyance  demanded. 
But  the  phiintiff  failed  to  allege  a  refusal  by  the  defendants 
to  execute  a  deed  upon  demand,  or  at  any  time  since  ;  and 
it  was  held  that  the  omission  was  fatal.* 

§  98.  Clia7'ging  injury. — When  damages  are  claimed, 
the  particular  injury  must  be  alleged,  and  not  merely  that 
the  plaintiff  has  sustained  damage.'  A  bill  to  enforce  the 
payment  of  a  lost  note  must  allege  that  the  note  has  not 
been  paid." 

^  99.  Prayer  for  relief. — A  bill  for  specific  performance 
which  contains  no  prayer  for  general  relief,  where  the  whole 
case  shown  by  the  bill  does  not  justify  the  relief  prayed 
for,  should  be  dismissed,  although  the  complainant  may 
have  been  entitled  to  some  other  relief.'  Where  neither 
party  asks  for  specific  performance,  it  is  error  in  the  court 
to  decree  it."" 

§  100.  When  cross  bill  required. — In  a  suit  for  specific 
performance,  the  defendant  must  file  a  cross  bill  if  he 
would  have  affirmative  relief."  Thus,  upon  a  bill  by  the 
vendee  to  enforce  specific  performance  of  a  contract  of  sale 
against  the  vendor's  representatives,  a  balance  having  been 
found  to  be  due  the  representatives,  it  was  held  that  a 
decree  could  not  be  rendered  for  such  sum  on  their  answer, 
but  that  there  must  be  a  cross  bill'  Where,  in  a  suit  for 
the  specific  performance  of  a  contract  in  regard  to  the  sale 
of  land,  and  to  restrain  the  defendants  from  bringing  ac- 
tions on  notes  given  for  the  purchase  money,  the  defence. 


'  Dodge  V.  Clark,  17  Cal.,  586. 

-  Chinock  v.  Marchioness  of  Ely,  2  H.  &  M.,  220. 

^  Mason  v.  Foster,  3  J.  J.  Marsh,  283. 

*■  Boyle  V.  Laird,  2  Wis.,  431.  A  bill  filed  by  the  vendor  praying  for  the 
specific  performance  of  the  contract  of  sale,  or  that  all  claim  of  the  vendee  be 
foreclosed,  is  not  a  bill  to  foreclose  a  mortgage.  State  of  Conn.  v.  Sheridan, 
I  Clark  N.  Y.,  533. 

*  Cantrell  v.  Rice,  6  J.  J.  Marsh,  338.  "  Hanna  v.  Ratikin,,43  111.,  103. 

'  Bussey  v.  Gant,  10  Humph.,  238. 


§    lOO.  WHEN    CROSS    BILL    REQUIRED.  12/ 

which  was  estabhshed,  was,  in  substance,  that  the  defend- 
ants were  not  bound  to  complete  until  the  notes  were  paid, 
it  was  held  that  no  other  judgment  could  be  rendered  than 
one  dismissing  the  complaint ;  and  a  judgment  giving  the 
defendants  affirmative  relief,  was  reversed.'  But  if  the 
answer  admits  the  agreement  as  alleged  in  the  bill,  the 
court  may  decree  performance  by  both  parties,  without  a 
cross  bill."  Where  the  purchaser  files  a  bill  for  perform- 
ance after  the  time  fixed  in  the  contract,  the  vendor  may, 
by  answer,  submit  to  perform,  and  file  a  cross  bill,  and 
compel  the  purchaser  also  to  perform.  But  he  cannot 
resist  fulfilment,  and  after  the  property  has  depreciated  in 
value,  enforce  specific  performance  against  the  purchaser.^ 
The  only  real  difference  between  a  bill  and  a  cross  bill  is, 
that  the  first  is  filed  by  the  plaintiff,  and  the  second  by  the 
defendant.  Both  contain  a  statement  of  the  facts,  and 
each  demands  affirmative  relief  upon  the  facts  stated.  In 
the  making  up  of  the  issues  and  the  trial  of  questions  of 
fact  the  court  is  governed  by  the  same  principles  of  law 
and  rules  of  practice  in  the  one  case  as  in  the  other.  When 
a  defendant  files  a  cross  bill  and  seeks  affirmative  relief 
he  becomes  the  plaintiff,"  and  the  plaintiff  in  the  original 
action  becomes  the  defendant  in  the  cross  bill.* 


>  Wright  V.  Delafield,  25  N.  Y.,  266.     ^  Dorsey  v.  Campbell,  i  Bland  Ch.,  356. 

^  Tobey  v.  Foreman,  79  III.,  489.  A  cross  bill  makes,  with  the  original  bill, 
but  one  suit,  and,  when  the  latter  is  dismissed,  the  dismissal  carries  with  it  the 
dismissal  of  the  cross  bill.  Elderkin  v.  Fitch,  2  Carter,  90.  As  the  cross  bill 
is  a  matter  of  defence,  it  ought  not  to  introduce  anything  not  contained  in  the 
original  suit.  May  v.  Armstrong,  3  J.  J.  Marsh,  262  ;  Daniel  v.  Morrison,  6 
Dana,  186  ;  Fletcher  v.  Wilson,  i  Sm.  and  Marsh  Ch.,  376 ;  Galatian  v.  Er^vin, 
Hopk.  Ch.,  48;  S.  C.  8,  Cowen,  361  ;  Josey  v.  Rogers,  13  Ga.,  478  ;  Slason  v. 
Wright,  14  Vt.,  208;  Rutland  v.  Paige.  24  lb.,  181  ;  Draper  v.  Gordon,  4  Sandf. 
Ch.,  210.  But  a  cross  bill  is  not  restricted  to  the  issues  of  the  original  suit. 
Nelson  v.  Dunn,  15  Ala.,  501.  It  may  set  up  additional  facts  when  they  con- 
stitute part  of  the  same  defence,  relative  to  the  same  subject  matter.  Underbill 
V.  Van  Cortlandt,  2  Johns.  Ch.,  339,  355.  It  is  not  a  good  objection  to  a  cross 
bill  that  it  does  not  set  out  a  copy  of  the  written  obligation  on  which  the  claim 
is  based,  when  the  obligation  is  attached  in  full  to  the  plaintiff's  bill.  Coe  v. 
Lindley,  32  Iowa,  437.  Under  the  system  of  pleading  adopted  by  the  codes,  the 
equitable  counter-claim  may  take  the  place  of  a  cross  bill  or  complaint.  See 
McAbee  v.  Randall,  41  Cal,  136. 

*  Ewing  V.  Patterson,  35  Ind.,  326. 


128  PLEADINGS.  §^   lOI,    I02. 

§  loi.  Amendment  by  plaintiff  when  contract  different 
from  that  charged. — Where  an  answer  to  a  bill  for  specific 
performance  sets  up  a  contract  different  from  that  charged 
in  the  bill,  the  plaintiff  cannot  have  a  decree  for  the  per- 
formance of  such  contract  without  amending  his  bill  so  as 
to  insist  upon  it.'  An  obligee  in  a  bond  to  make  title,  filed 
a  bill  for  specific  performance  of  the  contract  and  claimed 
to  have  the  land  conveyed  according  to  certain  boundaries, 
which  he  averred  were  intended  by  the  parties.  The 
defendant  denied  that  such  boundaries  were  meant,  and  set 
out  others,  which  he  alleged  were  the  true  ones.  Held, 
that  the  plaintiff  was  not  entitled  to  a  decree  corresponding 
with  the  defendant's  allegations,  for  the  reason  that  he  had 
not  averred  his  willingness  to  accept  a  deed  according  to 
the  lines  as  set  out  by  the  defendant,  and  had  not  offered 
to  release  him  from  any  further  claim.*  But  where,  in  a 
suit  for  the  specific  performance  of  a  written  contract,  the 
defendant  in  his  answer  submitted  to  a  specific  perform- 
ance of  the  real  agreement,  it  was  held  that  if  the  defendant 
established  his  case  by  evidence,  he  was  entitled  to  specific 
performance  of  the  agreement  as  proved,  even  against  the 
claim  of  the  plaintiff  to  have  his  bill  dismissed.' 

§  1 02.  Demurrer  to  bill  objecting  stattite  of  frauds. — The 
want  of  an  agreement  within  the  statute,  when  shown  by 
the  bill,  may  be  objected  by  general  demurrer,*  or  by  a 
demurrer  alleging  the  want  of  such  an  agreement ;'  it  be- 

'  Byrne  v.  Romaine,  2  Edw.  Ch.,  445.  To  a  bill  for  specific  performance,  the 
defendant  pleaded  that  the  contract  alleged  by  the  plaintiffs  did  not  contain  the 
true  terms  of  purchase,  but  he  did  not  state  what  the  true  terms  were.  The 
defendant  afterward  produced  a  contract  for  purchase  containing  different 
terms  from  those  alleged  by  the  j)laintiffs.  The  plaintiffs  amended  their  statement 
of  claim,  but  continued  to  insist  upon  specific  performance  of  the  contract  as 
stated  by  them.  It  was  held  that  the  plaintiffs  asking  at  the  trial  to  have 
specific  performance  with  a  variation,  according  to  the  terms  of  the  agreement 
produced  by  the  defendant,  the  suit  would  not  be  dismissed,  but  that  judgment 
would  be  given  for  specific  pertormance  with  the  variation.  Smith  v.  Wheat- 
croff,  L.  R.    9,  Ch.  D.,  223. 

"^  Richardson  v.  Godwin,  6  Jones,  Eq.,  229. 

'  Bradford  v.  Union  Bank  of  Tennessee,  13  How.,  57. 

*  Field  v.  Hutchinson,  i  Beav.,  599. 

'  Wood  V.  Midgley,  5  De  G.  M.  &  G.,  41  ;  S.  C.  2.  Sm.  &  Gif.,  115  ;  Bark- 
worth  v.  Young,  4  Drew,  i ;  and  see  Howard  v.  Okeover,  3  Swanst.,  421,  n. 


§   lOJ.  SETTING    UP    STATUTE    OF    FRAUDS.  I29 

ing  incumbent  on  the  plaintiff  to  state  the  facts,  if  any, 
which  take  the  case  out  of  the  statute.  The  statute  of 
frauds  differs  in  this  respect  from  the  statute  of  limitations, 
which  must,  in  all  cases,  be  pleaded.' 

§  103.  Setting  up  statute  of  frauds  by  plea  or  answer. — 
If  specific  performance  be  sought  of  a  parol  contract,  and 
the  defendant,  who  desires  to  avoid  such  performance  on 
the  ground  that  the  contract  is  within  the  statute  of  frauds, 
does  not  demur,  he  must  raise  the  objection  by  plea  or 
answer ;  otherwise  he  will  be  deemed  to  have  waived  it.' 
Where,  in  a  suit  for  the  specific  performance  of  a  contract 
to  convey  real  estate,  the  complaint  showed  that  the  agree- 
ment to  convey  was  not  in  WTiting,  and  did  not  aver  that 
possession  of  the  land  was  given  under  the  contract,  it  was 
held  that  a  general  denial  did  not  raise  the  issue  of  the 
statute  of  frauds.'  Where,  however,  a  bill  alleged  a  parol 
agreement  and  part  performance,  a  plea  averring  that  there 
was  no  agreement  in  writing,  and  an  answer  insisting  that 
the  alleged  acts  did  not  amount  to  part  performance,  was 
held  sufficient.*  But  a  plea  in  bar  alone  to  such  a  bill 
would  be  multifarious  and  bad,  for  the  reason  that  it  would 
consist  of  tv/o  distinct  points,  viz.,  a  denial  of  any  written 
agreement,  and  of  the  acts  of  part  performance.'  Although, 
when  the  answer  denies  or  does  not  admit  the  agreement, 
the  defendant   is  not  called  upon  to  plead  the  statute  in 

*  Ridgway  V.  Wharton,  3  DeG.  M.  &  G.,  691.  Where  a  petition  sets  forth  facts 
which  would  take  the  case  out  of  the  statute  of  limitations,  the  defendant  cannot 
plead  the  statute  unless  he  denies  the  averments  in  the  petition,  and  the  issues 
of  fact  thus  presented  must  be  tried.     Wright  v.  Le  Clair,  4  Greene,  Iowa,  420. 

^  Adams  v.  Patrick,  30  Vt.,  576 ;  Hull  v.  Peer,  27  111.,  312  ;  Meach  v.  Perry,  i 
D.  Chip  Vt.,  182  ;  Deyer  v.  Martin,  4  Scam.,  146  ;  HoUingshead  v.  McKenzie,  8 
Ga.,  457.  A  decree  for  the  specific  performance  by  infant  heirs  of  a  parol  con- 
tract of  their  ancestor  was  reversed  on  appeal,  on  the  ground  that  the  neglect  of 
the  guardian  to  plead  the  statute  of  frauds  in  defence  should  not  prejudice  the 
rights  of  the  infants.     Grant  v.  Craigmiles,  i  Bibb.,  203. 

'  Livesey  v.  Livesey,  30  Ind.,  398. 

^  Whitechurch  v.  Bevis,  2  Bro.  C.  C,  559  ;  S.  C.  2,  Dick,  664  ;  and  see  Hosier 
V.  Read,  9  Mod.,  86  ;  Moore  v.  Edwards,  4  Yes.,  23  ;  Bowers  v.  Cator,  lb.,  91  ; 
Evans  v.  Harris,  2  V.  &  B.,  361. 

^  Whitebread  v.  Brockhurst,  i  Bro.  C.  C,  404 ;  and  see  Child  v.  Comber,  3 
Swanst.,  423,  n. 


130  PLEADINGS,  §    103. 

order  to  avail  himself  of  it  as  a  defence,  as  the  burden  of 
proof  is  then  on  the  plaintiff  to  show  a  valid  agreement 
capable  of  being  enforced ;  yet,  if  the  answer  admit  an 
agreement,  even  though  it  be  but  a  parol  one,  the  defendant 
must  plead  the  statute  in  order  to  avail  himself  of  it.'  In 
an  action  for  the  specific  performance  of  a  parol  contract 
to  convey  to  the  mortgagor  premises  sold  under  a  decree 
of  foreclosure,  the  defendant  denied  the  agreement  set  out 
in  the  complaint,  and  set  up  an  agreement  to  re-convey  upon 
different  terms  and  conditions.  Held,  that  the  contract  so 
set  up  in  the  answer  could  not  be  held  sufficient  to  take  the 
case  out  of  the  statute  of  frauds,  because  it  did  not  corre- 
spond with  that  alleged  in  the  complaint.'  It  is  well  set- 
tled that  the  defendant  is  entitled  to  the  full  benefit  of  the 
statute,  notwithstanding  his  admission  that  there  was  an 
agreement ;'  but  if  he  desires  to  claim  the  benefit  of  the 
statute,  he  must  do  so  distinctly  at  the  same  time  that  he 
admits  the  agreement.*  If  this  be  neglected,  it  cannot  be 
done  at  the  hearing.'  Where  the  defendant  stated  in  his 
answer  that  no  formal  note  of  the  agreement  was  made,  and 
that  no  binding  agreement  ever  existed,  without  expressly 
claiming  the  benefit  of  the  statute,  it  was  held  that  he  could 

1  Ridgway  v.  Wharton,  3  De  G.  M.  &  G.,  677  ;  S.  C.  6,  House  of  Lords,  238  ; 
Croyston  v.  Banes,  Prec.  Ch.,  208  ;  Symondson  v.  Tweed,  lb.,  374 ;  Irildbahn 
V.  Robidoux,  11  Mo.,  659;  Walker  v.  Hill,  21  N.  J.  Eq.,  191  ;  Albert  v.  Winn,  5 
Md.,  66  ;  Talbot  v.  Bowen,  i  A.  K.  Marsh,  436  ;  Small  v.  Owings,  i  Md.  Ch., 
363  ;  Artz  V.  Grove,  i  Md.,  456  ;  Newton  v.  Svvasey,  8  N.  H.,  9  ;  Tilton  v.  Til- 
ton,  9  N.  H.,  385  ;  Dean  v.  Dean,  9  N.  J.  Eq.,  425  ;  Smith  v.  Brailsford,  i  De- 
saus.,  Eq.,  350  ;  Hutchinson  v.  Hutchinson,  4  lb.,  ']'] .  The  complainant  in  a  bill 
for  the  specific  performance  of  a  parol  contract  to  convey  land,  and  in  the  al- 
ternative for  compensation  for  improvements,  is  not  entitled  to  the  relief  sought, 
where  the  answer  denies  the  terms  of  the  contract  as  set  out  in  the  bill,  alleges  a 
different  contract,  and  also  insists  on  the  statute  of  frauds.  Sain  v.  Dulin,  6 
Jones,  Eq.,  195. 

•2  Morrell  v.  Cooper,  65  Barb.,  51, 

'  Cooth  V.  Jackson,  6  Ves.,  12  ;  Moore  v.  Edwards,  4  lb.,  23  ;  Rowe  v.  Teed, 
15  lb.,  375  ;  Blagden  v.  Bradbear,  2  lb.,  466  ;  Whitbread,  ex  parte,  19  lb.,  212, 
An  answer  to  a  bill  for  the  specific  performance  of  a  contract  of  sale,  admitting 
that  "the  defendant  negotiated  to  and  with  the  plaintiff  for  a  sale  of  the  lot  for 
seven  hundred  dollars,  but  denying  that  the  defendant  did  sell  the  same,"  was 
held  not  to  admit  the  contract.     Auter  v.  Miller,  18  Iowa,  405. 

■*  Spurrier  v.  Fitzgerald,  6  Ves.,  548  ;  Beatson  v.  Nicholson,  6  Jur.,  621. 

'  Baskett  v.  Cafe,  4  De  G.  &  Sm.,  388. 


§§  I04,   105.       AVERMENT  IN  ANSWER  OF  NEW  MATTER.  I3I 

not  avail  himself  of  it/  The  defendant  need  not  claim  the 
benefit  in  the  very  words  of  the  statute,  "but  he  must  claim 
it  in  words  equivalent,  so  as  to  call  the  attention  of  the 
plaintiff  to  the  circumstance  that  the  benefit  of  the  statute 
is  claimed.'"' 

§  104.  Objecting  that  wife  did  not  tuiite  in  contract. — 
Where,  in  a  suit  for  the  specific  performance  of  a  contract 
to  convey  land,  the  defendant  wishes  to  avail  himself  of  the 
defence  that  the  land  is  his  homestead,  that  he  is  a  married 
man,  and  that  his  wife  did  not  join  in  the  contract,  those 
facts  must  be  set  up  in  the  pleading,  and  cannot  be  proved 
under  a  mere  denial  of  the  agreement.'  The  defence  to  a 
bill  by  the  vendee  for  specific  performance  that  the  w^ife  re- 
fuses to  release  her  dower,  will  not  avail  if  the  vendee  offers 
to  waive  the  release.* 

§  105.  Averment  in  answer  of  new  matter. — If  new  mat- 
ter be  set  up,  not  responsive  to  the  allegations  of  the  bill, 
or  not  supported  by  the  proof,  it  is  no  ground  for  denying 
the  relief  prayed  for ;  as  where  the  vendor  admitted  his 
failure  to  convey  on  demand,  and  claimed  the  balance  of 
the  purchase  money  agreed  on,  and  also  the  discharge  of  an 
old  debt  of  the  vendee's  father,  which  was  alleged  to  be  a 
lien  on  the  land,  before  he  was  willing  to  execute  a  deed.' 
In  a  suit  by  a  vendee  to  compel  specific  performance  of  an 
agreement  to  sell  and  convey  land,  and  take  a  mortgage 
thereon  to  secure  a  part  of  the  purchase  money,  it  is  no  de- 
fence that  the  use  of  the  land  contemplated  by  the  vendee 
would  destroy  its  value,  within  the  time  allowed  by  the 
mortgage,  and  that  the  plaintiff  was  so  heavily  in  debt  that 


*  Skinner  v.  M'Douall,  2  De  G.  &  Sm.,  265. 

"^  Wigram,  Vice-Chancellor,  in  Beatson  v.  Nicholson,  supra.  An  objection 
that  the  contract  is  void  for  uncertainty  may  be  taken  by  answer  instead  of  de- 
murrer.    Pearce  v.  Watts,  L.  R.  20,  Eq.  492. 

3  Brown  v.  Eaton,  21  Minn.,  409.  *  Corson  v.  Muh'any,  49  Pa.  St.,  88. 

^  Smoot  V.  Rea,  19  Md.,  398.  A  bill  was  filed  to  enforce  specific  performance 
of  a  contract  to  convey  land  to  two.  The  answer  alleged  a  tender  to  one,  and  a 
demand  of  payment  of  the  consideration  note,  which  was  refused.  Held  that 
such  answer  was  sufficient,  the  other  plaintiff  being  out  of  the  country.  Lane  v. 
Ready,  12  Ind.,  475. 


132  PLEADINGS.  §   105. 

the  mortgage  would  be  the  only  security  for  the  purchase 
money/  And  where  a  defendant,  in  his  answer,  set  up  an 
outstanding  right  to  the  premises  in  a  third  party,  who 
acquiesced  in  the  plaintiff's  title,  it  was  held  not  a  defence 
to  the  bill.' 

■  Corson  v.  Mulrany,  supra. 

■  Laverty  v.  Moore,  33  N.  Y.,  658.  In  a  suit  to  enforce  the  specific  perform- 
ance of  an  agreement  for  tlie  exchange  of  lands,  the  plaintiff  being  unable  to 
give  the  title  mentioned  in  the  agreement,  it  was  held  that  the  bill  might  be  dis- 
missed, although  the  objection  was  not  stated  in  the  answer,  or  taken  until  the 
hearing  before  the  referee.     Park  v.  Johnson,  7  Allen,  378. 


CHAPTER   III. 

INJUNCTION. 

io6.  Preservation  of  rights  pending  suit. 

107.  Where  a  party  is  proceeding  to  enforce  a  judgment  contrary  to  agree- 

ment. 

108.  Restraining  action  at  law  in  relation  to  subject  of  suit. 

109.  Where  party  is  proceeding  to  act  contrary  to  agreement, 
no.  To  compel  party  to  fulfil  agreement. 

111.  In  case  of  breach  of  articles  of  partnership. 

112.  Where  affirmative  covenant  involves  a  negative. 

113.  In  case  of  affirmative  and  negative  stipulations. 

114.  Where  the  agreement  is  not  to  do  a  certain  thing. 

115.  In  case  of  violation  of  covenant  as  to  the  use  of  land  sold. 

116.  Where  party  agrees  not  to  apply  to  the  Legislature. 

117.  In  case  of  contracts  for  personal  services. 

§  106.  To  restrain  threatened  injury  ttntil  after  hear- 
ing.— An  injunction  may  be  a  mode  of  specifically  perform- 
ing the  contract ;  or  it  may  be  incident  and  ancillary  to  the 
performance.  It  will  only  be  granted  to  the  extent  that 
the  plaintiff  establishes  a  case  for  protection,  and  will  not 
be  extended  to  restrain  breaches  in  relation  to  which  a  ne- 
cessity for  relief  is  not  shown.'  But  it  is  sufficient  that  the 
plaintiff  make  out  ?i  prima  facie  case,  though  his  title  to  the 
relief  prayed  for  ultimately  fail.''  Where  the  legal  title  to 
the  subject  matter  of  the  contract  remains  in  one  of  the 
parties,  while  an  equitable  right  passes  to  the  other,  the 
court,  unless  the  party  having  the  equitable  right  has  so 
conducted  as  to  deprive  himself  of  his  equity,  will,  as  a  rule, 
restrain  the  party  in  possession  of  the  legal  title  from  pro- 
ceeding upon  it  at  law  to  disturb  the  other  party  in  the  en- 
joyment of  the  thing  bargained  for,  at  least  until  the  hear- 
ing.'   "  The  court  will,  in  many  cases,  interfere,  and  preserve 

'  Earl  of  Mexborough  v.  Bower,  7  Beav.,  127. 

*  Powell  v.  Lloyd,  i  Y.  and  J.,  427. 

^  Shannon  v.  Bradstreet,  i  Sch.  and  Lef.,  52;  Green  v.  Green,  2  Men,  86. 
Where  the  evidence  of  the  title  of  a  party  has  been  lost,  through  accident,  the 
other  party  will  be  restrained  by  an  injunction  from  setting  up  his  title.  Butch 
v.  Lash,  4  Iowa,  215. 


134  INJUNCTION.  §   1 06. 

the  property  in  statu  quo  during  the  pendency  of  a  suit  in 
which  the  rights  in  relation  to  it  are  to  be  decided  ;  and 
that  without  expressing,  and  often  without  the  means  of 
forming,  an  opinion  as  to  such  rights."'  And  the  injunc- 
tion will  be  continued,  although  it  be  not  clear  that  the 
plaintiff  will  succeed  at  the  hearing,  provided  there  is  ground 
for  supposing  that  relief  may  be  given."  Where  a  lessee 
filed  a  bill  against  his  lessor,  for  the  specific  performance  of 
an  agreement  to  grant  a  lease,  the  lessor  was  restrained  from 
bringing  an  action  of  ejectment  during  the  suit.'  But  if, 
in  a  suit  by  a  tenant  for  specific  performance,  it  is  doubtful 
whether  a  decree  can  be  rendered  in  his  favor,  the  court 
will  either  decline  to  enjoin  the  landlord  from  pursuing  his 
legal  right ;  or,  if  it  grant  an  injunction,  will  impose  such 
terms  on  the  tenant  as  will  secure  to  the  landlord,  in  case 
it  appears  at  the  hearing  that  the  tenant  is  not  entitled  to 
specific  performance,  the  same  benefit  he  would  have  had 
if  the  injunction  had  not  been  granted.^  An  injunction 
was  refused  in  behalf  of  a  tenant,  on  the  ground  that  he  was 
insolvent,  and  had  injured  the  premises.'  But  a  landlord 
was  restrained  from  bringing  ejectment,  notwithstanding 
the  person  with  whom  he  contracted  was  banki-upt,  and  had 

'  Lord  Cottenham  in  Gt.  Western  R.R.  Co.  v.  Birmingham  &  Oxford  June. 
R.R.  Co.,  2  Phil.,  605. 

-  Hudson  V.  Bartram,  3  Mad.,  440. 

'  Boardman  v.  Mostyn,  6  Ves.,  467.  Where  a  lessee,  in  consequence  of  bad 
weather,  was  unable  to  complete  repairs  within  the  time  allotted,  and  the  lessor 
did  not  notify  him  that  the  repairs  should  be  expedited,  an  action  of  ejectment 
was  restrained  by  injunction.  Bargent  v.  Thompson,  4  Giff.,  475.  See  Bamford 
V.  Creasy,  3  lb.,  675. 

■*  Attwood  V.  Barham,  2  Russ.,  186;  Sanxter  v.  Foster,  Cr.  &  Ph.,  302  ;  Pyke 
V.  Northwood,  i  Beav.,  152;  Paris  Chocolate  Co.  v.  Crystal  Palace  Co.,  3  Sm. 
&  G.,  120. 

°  Buckland  v.  Hall,  8  Ves.,  92.  Where  the  owner  of  land,  taken  by  a  railroad 
company,  brought  a  suit  against  the  company  to  enforce  his  lien  for  the  unpaid 
purchase  money,  it  was  held  that  the  court  would  not  grant  an  injunction  or  a 
receiver  against  the  company  before  judgment  was  obtained,  even  though  the 
company  admitted  their  liability.  Latimer  v.  Aylesbury  &  Buckingham  R.R. 
Co.,  L.  R.  9,  Ch.  D.  385.  In  a  suit  by  a  vendor  against  a  railway  company  to 
enforce  his  lien  for  the  purchase  money,  interest,  and  costs,  and  to  restrain  the 
company  from  running  trains  across  the  land,  the  court  made  an  order  for  a  sale 
of  the  land,  but  declined  to  grant  an  injunction.  Licett  v.  Stafford  &  Uttoxeter 
R.R.  Co.,  13  L.  R.,  Eq.  261. 


§   I06.  TO    RESTRAIN    THREATENED    INJURY.  1 35 

assigned  the  benefit  of  the  agreement  to  another ;  the  as- 
signee being  solvent,  and  in  a  condition  to  enter  into  the 
usual  covenants,  and  there  being  nothing  to  show  that  the 
contract  was  entered  into  upon  considerations  personal  to 
the  assignor/  An  injunction  will  be  granted  to  restrain  a 
vendor  from  conveying  the  legal  title  to  real  estate  pending 
a  suit  for  the  specific  performance  of  a  contract  for  its  sale, 
which,  if  permitted,  might  compel  the  vendee  to  make 
some  other  person  a  party  to  the  suit.'  But  a  vendor  will 
not  be  entitled  to  a  bill  in  equity  to  prevent  his  purchaser 
from  buying  other  land  from  a  third  person  pending  the 
transaction,  on  the  ground  that  by  making  such  second 
purchase,  it  may  be  impossible  for  him  to  complete  the 
first.'  A  purchaser  who  had  obtained  possession  was  en- 
joined from  cutting  timber  on  the  land."  And  third  persons 
will  sometimes  be  restrained  from  proceeding  to  do  what 
would  prejudice  the  plaintiff  in  relation  to  the  property." 
An  improper  disposition  of  trust  assets  may  be  restrained 
in  behalf  of  the  cestui  que  trust;  or  a  threatened  breach  of 
trust  prevented  on  the  application  of  a  co-trustee  ;°  or  an 


'  Crosbie  v.  Tooke,  i  M,  &  K.,  431. 

2  Echliff  V.  Baldwin,  16  Ves.,  267  ;  Curtis  v.  Marquis  of  Buckingham,  3  V.  &  B., 
168.  "  If  the  vaUdity  of  the  contract  is  open  to  doubt,  the  question  whether  the 
vendor  shall  be  permitted  to  transfer  the  legal  estate  to  a  third  person  pending 
a  suit  for  specitic  performance,  becomes  a  question  of  comparative  convenience 
or  inconvenience.  If,  on  the  one  hand,  greater  inconvenience  would  arise  to  the 
plaintiff  from  withholding  the  injunction,  than  to  the  defendant  from  granting  it, 
an  injunction  will  be  granted."  Kerr  on  Injunc,  336.  An  injunction  will  be 
granted  with  caution.  In  one  case  the  court  refused  to  restrain  a  vendor  from 
leasing  the  property,  and  from  selling  and  conveying  the  same,  except  to  the 
plaintiff,  on  the  ground  that  a  purchaser,  pending  the  suit,  would  take  subject  to 
the  rights  of  the  plaintiff.  Turner  v.  Wright,  4  Beav.,  40.  In  another  case, 
Lord  Eldon,  though  he  granted  an  injunction  restraining  the  vendors  of  certain 
copyhold  property  from  surrendering  it  to  any  other  persons  than  the  plaintiffs, 
who  were  in  possession  and  had  paid  part  of  the  purchase  money,  said  :  "I  wish 
it  understood,  as  my  opinion,  that,  in  general,  on  a  bill  for  the  specific  perform- 
ance of  an  agreement  to  sell,  the  plaintiff  is  not  entitled  to  restrain  the  owner 
from  dealing  with  the  property.  A  different  doctrine  would  operate  to  control 
the  rights  of  ownership,  although  the  agreement  was  such  as  could  not  be  per- 
formed."    Spiller  V.  Spiller,  3  Swanst.,  556. 

^  Syers  v.  Brighton  Brewery  Co.,  13  W.  R.,  220. 

*  Crockford  v.  Alexander,  15  Ves.,  138.         ^  Nicholson  v.  Knapp,  9  Sim.,  326. 

*  Scott  V.  Becher,  4  Price,  346 ;  Kerr  on  Injunc,  172,  173. 


136  INJUNCTION.  §    107. 

injunction  be  issued  ao;ainst  executors,  when  they  are  mis- 
managing the  assets  of  the  estate. 

§  107.  To  prevent  party  from  eiiforcinf^  a  jitdgmciit  con- 
trary to  agreement. — The  enforcement  of  a  judgment,  en- 
tered contrary  to  an  express  agreement  between  the  parties, 
may  be  restrained  by  injunction.'  Upon  a  bill  praying  that 
the  defendant  might  be  restrained  from  enforcing  a  judg- 
ment at  law  obtained  in  violation  of  an  agreement  that  the 
case  should  be  discontinued  without  costs,  it  was  held  that 
the  fact  that  the  defendant  had  not  threatened  to  enforce 
the  judgment,  was  no  reason  for  refusing  the  relief  asked 
for  ;  since  it  was  indispensable  to  the  plaintiff's  security,  that 
the  judgment  against  him  should  be  discharged,  or  put  in 
such  a  condition  that  it  could  never  subject  him  to  the 
danger  of  further  litigation,  and  that  the  refusal  of  the  de- 
fendant to  discharge  the  judgment,  was  tantamount  to  a 
threat  to  enforce  it ; '  and  where  a  judgment  creditor  was 
proceeding  to  collect  the  whole  amount  of  the  judgment, 
contrary  to  an  agreement  between  the  parties  that  certain 
payments  should  be  credited  thereon,  a  decree  was  rendered 
enjoining  so  much  of  the  judgment  as  was  equivalent  to 
the  amount  agreed  to  be  credited.'  So,  where  several  judg- 
ment creditors,  who  have  levied  on  real  estate,  enter  into 
an  agreement  that  the  land  shall  be  sold  on  one  of  the  judg- 
ments, that  "upon  such  a  sale,  a  clear  title  shall  pass  to  the 
purchaser,  and  that  the  priorities  of  the  liens  under  the  sev- 
eral judgments  and  levies  shall  be  tried  in  such  mode  as 
may  be  thought  advisable,  and  the  proceeds  of  sale  appro- 
priated accordingly,"  a  violation  of  the  agreement  will  be 
restrained  by  injunction.* 

'  Kent  V.  Ricards,  3  Md.  Ch.,  392.  A  court  of  equity  will  not  restrain  the  exe- 
cution of  a  judgment,  unless  the  complainant  had  a  good  defence  at  law,  and 
was  prevented  from  availing  himself  of  it  by  mistake,  surprise,  or  fraud,  without 
any  fault  or  negligence  of  his.     Hill  v.  Reifsnider,  46  Md.,  555. 

^Chambers  v.  Robbins,  28  Conn.,  552. 

^  Newman  v.  Meek,  Sm.  and  Marsh  Ch.,  331  ;  and  see  Dickenson  v.  McDer- 
mott,  13  Texas,  248. 

^  Reily  v.  Miami  Exporting  Co.,  5  Ohio,  333. 


§§    I08,    109.       ACT    IN    VIOLATION    OF    AGREEMENT.  1 37 

§  108.  Enjoining  action  at  law  in  relation  to  same  mat- 
ter.— Upon  the  principle  that  equity  will  not  permit  an 
action  at  law  to  be  maintained  in  respect  to  the  same  sub- 
ject matter,  the  court  will,  in  general,  after  a  bill  for  specific 
performance  has  been  filed,  restrain  an  action  for  damages 
for  delay  in  completion,  or  an  action  for  the  deposit  upon 
its  being  paid  into  court ; '  and  an  injunction  to  restrain  an 
action  at  law  for  the  deposit,  may  be  obtained  in  behalf  of, 
or  against,  the  agent  of  a  party.  An  injunction  was  granted 
against  the  purchaser,  restraining  him  from  proceeding  in  an 
action  against  the  auctioneer,  who  was  not  a  party  ;  though, 
in  a  previous  case,  a  motion  for  an  injunction  against  the 
purchaser,  forbidding  him  to  proceed  at  law  to  recover  the 
deposit  from  the  seller's  attorney  who  was  not  a  party,  was 
denied  with  costs.'  When  the  vendor  retains  both  the  de- 
posit and  the  land,  through  the  fault  of  the  purchaser,  he 
will  not  be  compelled  to  pay  the  deposit  into  court.' 

§  109.   To  prevent  the  doing  of  some  act  in  violation  of 
agreement. — An  injunction  frequently  takes  the  form  of  a 
decree  for  specific  performance  by  restraining  a  party  from 
doing  a  certain  act,  which,  by  the  terms  of  the  contract, 
either  express  or  implied,  he  is  required  not  to  do.*    Where 

'  Levy  V.  Lindo,  3  Men,  82  ;  Johnson  v.  Smart,  2  Giff.,  156;  Kell  v.  Nokes, 
32  L.  J.  Ch.,  785  ;  Duke  of  Beaufort  v.  Glynn,  3  Sm.  and  G.,  213  :  Annesley  v. 
Muggridge,  i  Mad.,  593;  Fordyce  v.  Ford,  4  Bro.  C.  C.,  494.  If  a  party,  pend- 
ing a  suit  to  establish  his  legal  title,  obtains  possession  of  the  property  by  unfair 
means,  equity  will  not  stay  proceedings  at  law  against  him  for  the  recovery  of 
possession.     Grafton  v.  ,  i  R.  and  M.,  336. 

Although  the  dismissal  of  the  vendor's  bill  for  specific  performance,  will  not, 
as  a  rule,  prevent  his  bringing  an  action  for  breach  of  the  contract,  yet  it  is  cus- 
tomary to  state  in  the  decree,  that  the  dismissal  is  without  prejudice  to  the  legal 
right.  Macnamara  v.  Arthur,  2  B.  and  B.,  349.  But  an  action  at  law  will  be 
enjoined  where  the  bill  has  been  dismissed  for  want  of  title,  lb. ;  or  where  the 
doing  of  the  thing  for  which  the  action  at  law  is  brought,  has  been  waived. 
Reynolds  v.  Nelson,  6  Mad.,  290.  If  specific  performance  be  decreed,  proceed- 
ings at  law  will  be  restrained.  Green  v.  Low,  22  Beav.,  625  ;  Frank  v.  Basnett, 
2  M.  and  K.,  618  ;  Prothero  v.  Phelps,  7  D.  M.  and  G.,  734. 

^  Sug.  V.  and  P.,  229,  n. 

=  Wynne  v.  Griffith,  i  Sim.  and  Stu.,  147.  See  Lloyd  v.  CoUett,  4  Bro.  C.  C, 
469,  71 ;  Stewart  v.  Alliston,  i  Mer.,  28  ;  Tanner  v.  Smith,  4  Jur.,  310  ;  Pincke  v. 
Curteis,  4  Bro.  C.  C.,  330  ;  Morley  v.  Cook,  2  Hare,  106. 

*  Barret  v.  Blagrave,  5  Ves.,  555.  As  a  rule,  the  violation  of  a  contract 
which  cannot  be  specifically  enforced  will  not  be  restrained  by  injunction.  Ac- 
cordingly, where  the  lessee  of  a  coal  mine  contracted  to  raise  and  deli\er  to  the 


138  INJUNCTION.  §    109. 

a  contract  was  entered  into  between  two  companies  where- 
by one  was  to  construct  a  railroad,  and  the  other  to  operate 
it  and  to  carry  over  the  Hne  certain  traffic,  and  the  latter 
company  was  violating  the  agreement  by  carrying  the  traffic 
over  other  lines,  a  demurrer  to  a  bill  filed  by  the  first-named 
company  to  restrain  the  other  from  so  doing,  was  overruled.* 
If  a  stipulation  is  violated,  the  plaintiff  may  be  restrained 
whether  damage  will  or  will  not  otherwise  be  likely  to 
result.  "If  the  construction  of  the  instrument  is  clear, 
then  it  is  not  a  question  of  damage;  but  the  mere  circum- 
stance of  the  breach  of  covenant  affords  sufficient  ground 
for  the  court  to  interfere  by  injunction."*  But  although 
the  simple  fact  that  there  has  been  a  breach  of  covenant  is 
sufficient,  and  it  will  be  no  answer  for  the  defendant  to  say 
that  the  act  complained  of  will  inflict  no  injury  on  the 
plaintiff,  or  will  be  a  benefit  to  him  ;  yet  if  damages  will 
compensate  either  the  benefit  derived  or  the  loss  suffered, 
equity  will  not  interfere.  So,  where  either  party  may 
suffer  by  the  granting  or  withholding  of  an  injunction,  the 

plaintiflFs  all  the  coal  in  the  mine  at  a  fixed  price  for  five  years,  and,  coal  having 
risen  in  value,  the  defendant  was  selling  coal  to  other  parties,  it  was  held  on  de- 
murrer that  the  court  had  no  jurisdiction  to  grant  an  injunction  to  restrain  a 
breach  of  the  contract.  Fothergill  v.  Rowland,  L.  R.  17,  Eq.  132.  But  if  the 
case  is  one  in  which  the  granting  of  an  injunction  will  do  substantial  justice  be- 
tween the  parties  by  obliging  the  defendant  either  to  carry  out  his  contract  or 
lose  all  benefit  of  the  breach,  and  the  remedy  at  law  is  inadequate,  and  there  is 
no  reason  of  policy  against  it,  the  court  will  interfere  to  restrain  conduct  which 
is  contrary  to  the  contract,  although  it  may  be  unable  to  enforce  specific  per- 
formance of  it.  "  It  was  formerly  thought  that  an  injunction  would  not  be 
granted  to  restrain  the  breach  of  any  contract,  unless  the  contract  was  of  such 
a  character  that  the  court  could  fully  enforce  the  performance  of  it  on  both 
sides.  Upon  this  ground  there  were  many  decisions  refusing  to  interfere  with 
contracts  for  personal  services,  however  flagrant  might  be  the  breach  of  them. 
....  It  is  now  firmly  established  that  the  court  will  often  interfere  by  injunc- 
tion when  it  cannot  decree  specific  performance The  case  of  Lumley  v. 

Wagner,  i  De  G.  M.  &  G.,  has  been  followed  by  numerous  cases  concerning 
■  actors,  authors,  and  publishers.  Webster  v.  Dillon,  5  W.  R.,  867  ;  Stiff  v.  Cas- 
sell,  5  Jur.  N.  S.,  348.  The  case  of  Fechter  v.  Montgomery,  33  Beav.,  22, 
sometimes  cited  as  opposed  to  these  decisions,  is  not  so  at  ail.  The  decision 
there  was  that  the  actor  had  the  right  to  renounce  his  engagement  because  the 
manager  had  not  fulfilled  his  part  of  the  contract.  See  also  Slee  v.  Bradford, 
4  Giff.,  262."     Lowell,  J.,  Singer  Co.  v.  Union  Co.,  i  Holmes  C.  C,  253. 

'  Wolverhampton  &  Walsall  R.R.  Co.  v.  London  &  Northwestern  R.R.  Co., 
L.  R.  16,  Eq.  433. 

■•'  Vice-Chancellor  Wood  in  Tipping  v.  Eckersley,  2  K.  &  J.,  270.  Approv^ed 
in  Lord  Manners  v.  Johnson,  44  L.  J.  C,  404. 


§    no.        TO    COMPEL    FULFILMENT    OF    STIPULATION.  I39 

rule  in  equity  requires  the  court  to  balance  the  incon- 
veniences likely  to  be  sustained  by  the  respective  parties  by 
means  of  the  action  of  the  court,  and  to  grant  or  withhold 
the  injunction  according  to  sound  discretion.*  The  viola- 
tion of  a  contract  may  be  restrained  by  injunction  though 
one  party  has  the  sole  right  to  terminate  it,  provided  their 
stipulation  is  not  one  that  makes  the  whole  contract  in- 
equitable.'' Where  the  plaintiff  might  discontinue  his  busi- 
ness whenever  he  chose,  and  thereby  deprive  the  defend- 
ant of  employment,  the  latter  was  nevertheless  restrained 
from  working  for  another  person.^  In  case  of  an  agree- 
ment to  sell  and  deliver  goods,  the  seller  will  not  in  gen- 
eral be  restrained  frofn  making  a  different  disposition  of 
the  goods,  for  the  reason  that  the  breach  of  the  contract 
can  be  compensated  by  the  market  value  of  the  goods.* 
Where  the  acts  complained  of  are  repeated,  and  it  cannot 
be  ascertained  in  each  case  whether  there  has  been  a  breach 
without  an  action  at  law,  an  injunction  will  not  be  granted.* 
When  there  is  a  dispute  relative  to  the  rights  of  the  parties 
under  the  contract  involving  its  terms  and  obligations,  an 
injunction  ought  not  to  be  granted  until  the  rights  of  the 
parties  are  ascertained  and  settled.  If  the  proof  be  so 
equally  balanced  as  to  leave  the  precise  terms  of  the  con- 
tract in  doubt,  this  will  be  sufficient  cause  for  a  denial  of 
the  application.^ 

§  1 10.  To  compel  fidjilment  of  stipulation. — The  jurisdic- 
tion of  equity  to  interfere  by  way  of  injunction  is  not  con- 
fined to  cases  in  which  specific  performance  can  be  decreed, 
but  is  exercised  whenever  it  can  operate  to  bind  men's  con- 
sciences to  a  true  and  literal  fulfilment  of  their  agreement.  If 
the  injury  done  to  the  plaintiff  cannot  be  estimated,  and 

'  Grey  v.  Ohio  &  Pa.  R.R.  Co.,  i  Grant,  412  ;  Richard's  Appeal,  57  Pa.  St., 
105. 
"  Singer  Co.  v.  Union  Co.,  i  Holmes  C.  C,  253. 
=  Rolte  V.  Rolfe,  15  Sim.,  88. 

*  Fothergill  \^  Rowland,  L.  R.  17,  Eq.  132.     See  ante,  §§  16,  17. 
'  Collins  V.  Plumb,  16  Yes.,  454.  "  Brown's  Appeal,  62  Pa.  St.,  17. 


140  INJUNCTION.  §    I  10. 

sufficiently  compensated  in  money,  the  court  has  power  to 
grant  what  is  called  a  mandatory  injunction  ;  that  is,  an 
order  compelling  the  defendant  to  restore  things  to  the  con- 
dition which  they  were  in,  previous  to  the  wrong,  and,  in 
that  way,  indirectly  enforce  an  agreement  of  which  it  could 
not  directly  decree  specific  performance."  Where,  for  in- 
stance, the  lessor  of  mills  covenanted  to  supply  water  to 
them  from  certain  canals  and  reservoirs,  and  the  lessee  filed 
a  bill  to  compel  the  lessor  to  repair  the  canals  so  that  the 
lessee  could  enjoy  the  water,  Lord  Eldon,  doubting  whether 
he  could  decree  repairs,  accomplished  the  same  result  by 
enjoining  the  lessor  from  hindering  the  plaintiff's  enjoy- 
ment of  his  rights  by  keeping  the  canals  out  of  repair.' 

1  Isenberg  v.  East  India  House  Co.,  33  L.  J.  Ch.,  392 ;  Stanley  v.  Earl  of 
Shrewsbury,  L.  R.  19,  Eq.  619. 

-  Lane  v.  Newdigate,  10  Ves.,  192.  This  is  said  to  have  been  the  first  case  in 
which  the  application  of  the  negative  fortn  of  injunction  to  insure  the  perform- 
ance of  a  positive  agreement,  was  distinctly  avowed  by  the  court.  Batten  on 
Specif.  Perform.,  140.  The  bill  prayed  that  the  defendant  might  be  decreed  to 
restore  a  cut  for  carr^'ing  waste  water,  and  to  restore  a  stop-gate,  and  the  banks 
of  a  canal  to  their  former  height;  and  also  to  repair  such  stop-gates,  bridges, 
canals,  and  towing  paths,  as  were  made  previously  to  the  granting  of  the  lease. 
Lord  Eldon,  after  expressing  a  doubt  whether  it  was  according  to  the  practice  of 
the  court  to  order  repairs,  said  :  "  As  to  restoring  the  stop-gate,  the  same  difficulty 
occurs.  The  question  is,  whether  the  court  can  specifically  order  that  to  be  re- 
stored. I  think  1  can  direct  in  terms  that  which  will  have  that  effect.  The  in- 
junction I  shall  order,  will  create  the  necessity  of  restoring  the  stop-gate  ;  and 
attention  will  be  had  to  the  manner  he  is  to  use  these  locks,  and  he  will  find 
it  difficult,  I  apprehend,  to  avoid  completely  repairing  these  works."  The  order 
restrained  the  defendant  from  hindering  the  plaintiff  from  using  the  canal  con- 
trary to  the  covenant,  by  continuing  to  keep  the  said  canal,  or  the  banks,  gates, 
locks,  or  works  of  the  same,  respectively,  out  of  good  repair,  or  by  continuing  the 
removal  of  the  stop-gate. 

The  practice  of  granting  mandatory  injunctions  was  disapproved  by  Lord 
Brougham,  as  being  a  circuitous  way  of  obtaining  the  object  sought.  In  Rankin 
V.  Huskisson,  4  Sim.,  18,  after  referring  to  the  cases,  he  said :  "  This  brings  me 
to  Lane  v.  Newdigate,  which  may  be  said  to  go  to  the  very  uttermost  verge  of  all 
the  former  cases,  and  indirectly  to  order  something  to  be  done,  by  restraining  the 
party  from  continuing  to  keep  certain  works  out  of  repair.  That  case  appears  to 
have  been  ex  parte,  and  not  at  all  argued."  And  in  a  subsequent  case,  he  said  : 
"  I  shall  pursue  the  course  I  have  always  taken,  of  not  extending  the  power  which, 
in  cases  of  a  peculiar  nature,  this  court  has  sometimes  exercised,  of  ordering  a 
thing  to  be  done,  under  the  form  of  restraining  parties  from  preventing  it." 
Milligan  v.  Mitchell,  i  M.  &  K.,  452. 

In  a  suit  against  a  railroad  company,  the  bill  prayed  that  the  defendants  might 
be  restrained  from  stopping  up  a  road  which  they  had  already  stopped  up.  Sir 
L.  Shadwell,  Vice-Chancellor,  in  overruling  a  demurrer,  said  :  "  The  power  of 
the  court  to  grant  that  species  of  injunction,  which  Lord  Eldon  granted,  namely, 
restraining  a  party  from  allowing  a  thing  to  continue,  and  which  has  the  effect 
of  making  him  take  some  active  measures,  has  been  since  recognized  and  acted 


§111.         VIOLATION    OF    ARTICLES    OF    PARTNERSHIP.  I4I 

And  the  same  judge,  in  another  case,  enforced  an  agree- 
ment for  a  right  of  way  by  an  injunction  restraining  the 
removal  of  the  materials  and  the  destruction  of  the  way.' 

§  III.  In  case  of  violation  of  ai' tides  of  pa7't7tership. — 
A  court  of  equity  will  restrain  by  injunction  a  member  of 
a  firm  from  a  breach  of  the  partnership  articles,  or  from 
excluding  the  other  partner  from  the  business  of  the  con- 
cern, or  so  conducting  that  the  partnership  cannot  go  on 
with  advantage,  and  if  necessary  a. receiver  will  be  appoint- 
ed. And  the  same  thing  will  be  done  under  similar  circum- 
stances with  regard  to  public  companies.''  Where  a  part- 
nership had  been  formed  for  a  specified  time  which  had  not 
expired,  a  partner,  who  insisted  on  a  dissolution  and  formed 
another  partnership,  was  restrained  from  carrying  on  busi- 
ness with  any  other  persons  until  the  expiration  of  the 
term ;  and  his  new  partners  were  restrained  from  carrying 
on  business  with  him,  or  otherwise,  in  the  name  of  the  old 
firm,  and  from  receiving  or  opening  letters  addressed  to  it, 
and  from  interfering  with  its  property.  The  partner  w^ho 
had  left,  was  also  restrained  from  publishing  or  circulating 
any  notice  of  the  dissolution  of  the  old  firm  before  the  ex- 
piration of  the  time  for  which  it  had  been  formed."  So, 
one  of  the  proprietors  of  a  morning  new^spaper  obtained 

on  ;  and  I  don't  see  why,  if  that  species  of  negative  injunction  has  been  adopted, 
it  should  not  be  adopted  here,  so  as  to  prevent  the  parties  from  continuing  the 
excavation  in  its  present  state,  and  from  making  the  excavation  greater.  The 
injunction  asked  for,  so  far  as  it  restrains  the  defendants  from  widening  the  exca- 
vation, is  quite  the  common  sort  ;  but  so  far  as  it  seeks  to  prevent  its  continu- 
ance, it  is  of  a  negative  kind  ;  but  it  has  been  adopted  by  Lord  Eldon."  Spencer 
V.  London  &  Birmingham  R.R,  Co.,  8  Sim.,  193. 

It  was  said  by  the  court  in  one  case,  "  that  injunctions,  in  substance  manda- 
tory, though  in  fact  merely  prohibitory,  have  been,  and  may  be  granted  by  the 
court,  is  clear.  This  branch  of  its  jurisdiction  may  be  one  not  fit  to  be  exer- 
cised without  particular  caution  ;  but  certainly  it  is  one  fit  and  necessar)%  under 
certain  circumstances,  to  be  exercised.  Under  what  circumstances  it  should  be 
exercised,  must  be  a  matter  for  judicial  discretion  in  each  case."  Bruce  v.  C.  in 
Gt.  North  of  Eng.  R.R.  v.  Clarence  R.R.,  i  Coll.,  522. 

In  this  country,  the  courts  grant  mandatory  injunctions  with  great  reluctance. 
Washington  University  v.  Green,  i  Md.  Ch.,  G7  ;  Audenreid  v.  Phila.  &  Read- 
ing R.R.  Co.,  68  Pa.  St.,  370. 

'  Newmarch  v.  Brandling,  3  Swanst.,  99. 

Teatherstone  v.  Cooke,  L.  R.  16,  Eq.  298. 

'  England  v.  Curling,  8  Beav.,  1 29. 


142  INJUNCTION.  §    112. 

an  injunction  against  his  co-partners,  who  were  also  pro- 
prietors of  another  newspaper  in  which  he  was  not  inter- 
ested, restraining  them  from  pubHshing  in  the  latter, 
information  obtained  at  the  expense  of  the  former,  until 
after  it  had  been  published  in  the  former.'  And  one  of 
the  proprietors  of  a  theatre  was  restrained  from  violating 
the  partnership  articles,  by  writing  plays  for  other  theatres." 
§  1 1 2.  Where  contract  involves  a  negative. — When  an 
affirmative  covenant  also  involves  a  negative,  equity  will 
restrain  the  doing  of  acts  inconsistent  with  the  agreement. 
A  person  who,  having  covenanted  to  leave  sufficient  bar- 
riers against  adjoining  collieries,  had  not  done  so,  was  en- 
joined from  permitting  the  communications  to  remain 
open/  One  who  had  covenanted  to  preserve  trees  from 
waste  and  damage,  was  restrained  from  cutting  them  down, 
or  injuring  them.*  So,  lessees  who  have  covenanted  to 
cultivate  land  in  a  husbandlike  manner,  or  according  to  the 
custom  of  the  country,  have  been  restrained  from  doing 
the  contrary.'  And  w^here  an  actor  contracted  to  perform 
at  a  certain  theatre,  he  was  restrained  from  performing 
elsewhere  on  the  nights  he  had  engaged  to  perform  at  the 
plaintiff's  theatre,  although  he  did  not  agree  not  to  perform 
at  any  other  place.*  So,  a  lessee  who  has  covenanted  to 
deliver  up  the  premises  at  the  end  of  the  term  in  good  re- 
pair, may  be  restrained  during  the  term  from  pulling  down 


'Glassington  v.  Thwaites,  i  Sim.  &  Stu.,  124. 

'^Morris  v.  Coleman,  18  Ves.,  437. 

^Earl  of  Mexborough  v.  Bovver,  7  Beav.,  127. 

■•  Lord  Bathurst  v.  Burden,  2  Bro.  C.  C,  64. 

^Drur>'  V.  Molins,  6  Ves.,  328;  Pratt  v.  Brett,  2  Mad.,  6r>;  Kimpton  v.  Eve, 
2  V.  &  B.,  349;  Walton  v.  Johnson,  15  Sim.,  352  ;  Webb  v.  Plummer,  2  B.  & 
Aid.,  746  ;  Rogers  v.  Price,  13  Jur.,  820, 

"Webster  v.  Dillon,  3  Jur.  N.  S.,  432.  Stt  post,  §  117.  Where  a  husband  and 
wife  entered  into  an  agreement  with  the  manager  of  a  theatre,  that  the  wife 
should  act  therein  for  a  specified  time,  for  a  certain  salary,  it  was  held  that  the 
wife  would  not  be  enjoined  from  performing  at  another  theatre  during  the  time  ; 
nor  the  husband  from  allowing  her  to  change  her  residence  ;  nor  another  mana- 
ger from  employing  her  within  the  time.  Burton  v.  Marshall,  4  Gill,  487.  The 
court  in  this  case  remarked  that  the  agreement  contained  no  negative  stipu- 
lation. 


§113.     CONTRACT    BOTH    AFFIRMATIVE    AND    NEGATIVE.        1 43 

the  house,  and  carrying  away  the  materials.'  An  injunc- 
tion was  granted  against  a  railroad  company,  restraining  it 
from  removing  from  the  cars  placards  and  advertisements, 
and  from  the  stations  the  book-stalls  of  the  plaintiff,  in 
breach  of  a  covenant.''  And  where  a  member  of  a  partner- 
ship carried  off  a  book  of  the  firm,  in  violation  of  the  deed 
of  partnership,  he  was  made  to  perform  his  covenant  by 
means  of  an  injunction.' 

§  1 13.  Where  the  contract  is  both  affirmative  and  nega- 
tive.— When  an  affirmative  agreement  is  such  that  it  can- 
not be  specifically  enforced,  and  the  effect  of  an  injunction 
would  be  to  decree  specific  performance,  the  court  will  not 
import  a  negative  covenant  into  the  agreement,  but  will 
leave  the  plaintiff  to  his  remedy  at  law\  Thus,  where  the 
plaintiff  is  granted  an  office  or  situation  of  trust  and  confi- 
dence, the  defendant  will  not  be  restrained  from  employing 
another  person  in  the  plaintiff's  place.*  So  where  there  was 
a  contract  for  exclusive  service  during  seven  years,  and  for 
a  partnership  at  the  expiration  of  that  time  on  such  terrns 
as  should  be  mutually  agreed  on,  as  the  court  could  not 
enforce  the  whole  agreement,  it  refused  to  restrain  the 
violation  of  the  covenant  for  exclusive  service.'  And 
where  a  contract  was  entered  into  between  A.  and  B.,  that 
the  former  should  furnish  the  latter  drawings  for  maps, 
which  B.  should  have  the  exclusive  right  to  sell,  as  the 
court  could  not  compel  A.  to  furnish  the  drawings,  it  re- 
fused to  restrain  B.  from  selling  the  maps."    If,  however, 


'  See  Ward  v.  Duke  of  Buckingham,  cited,  10  Ves.,  161. 

2  Holmes  v.  Eastern  Counties  R.R.  Co.,  3  K.  &  J.,  675. 

^  Taylor  v.  Davis,  3  Beav.,  388,  tt. 

*  Pollard  V.  Clayton,  i  K.  &  J.,  462  ;  Peto  v.  Brighton,  etc.,  R.R.  Co.,  i  H.  & 
M.,  468  ;  De  Mattos  v.  Gibson,  4  DeG.  &  J.,  299 ;  Newberry  v.  James,  2  Mer., 
446;  Hamilton  v.  Dunsford,  6  Ir.  Ch.,  412.  A  contract  of  charter  party  is  an 
exception  to  the  rule  that  a  negative  will  not  be  imported  into  an  affirmative 
agreement  unless  the  agreement  is  such  that  a  decree  for  specific  performance 
can  be  rendered.     Kerr  on  Injunc,  526. 

^  Kimberley  v.  Jennings,  6  Sim.,  340. 

^Baldwin  v.  Soc.  for  Diffusing  Useful  Knowledge,  9  Sim.,  393;  Clarke  v. 
Price,  2  J,  Wils.,  157. 


144  •  INJUNCTION.  §   TI4- 

the  agreement  consists  of  affirmative  and  negative  stipula- 
tions, the  former  of  which  are  incapable  of  being  specifi- 
cally enforced,  a  violation  of  the  latter,  if  they  constitute 
a  distinct  and  substantive  part  of  the  agreement,  will  be 
restrained  by  injunction.'  But  not,  if  the  affirmative  and 
negative  stipulations  cannot  be  separated.  Thus,  where  A. 
had  given  B.  a  sum  of  money,  and  B.  had  covenanted  that 
he  would  buy  all  the  acids  he  wanted  from  the  manufactory 
of  A.,  who  covenanted  that  he  would  supply  the  acids,  and 
B.  also  covenanted  that  he  would  buy  his  acids  from  no 
other  person,  Lord  Lyndhurst  refused  to  prohibit  B.  from 
obtaining  acids  from  any  other  quarter,  both  because  the 
covenants  were  correlative,  and  because  he  could  not  com- 
pel A.  to  supply  B.  with  acids  ;  and  if  therefore  he  had  re- 
strained B.  from  taking  acids  from  any  other  quarter,  he 
might  have  ruined  him  in  the  event  of  A.  breaking  his 
affirmative  covenant  to  supply  the  acids." 

§  114.  Restraining  party  from  violatuig  negative  stipu- 
lation.— When  a  person  enters  into  an  agreement  not  to  do 
a  certain  thing,  the  contract  may  be  enforced  by  an  injunc- 
tion restraining  the  act.  Thus,  where  the  plaintiffs,  who 
lived  near  a  church,  agreed  with  the  parson,  church-war- 
dens, overseers,  and  other  inhabitants  of  the  parish  that  the 
former  should  erect  a  new  cupola,  clock,  and  bell  to  the 
church,  and  that  the  bell,  which  had  been  rung  every  day 
at  five  o'clock  in  the  morning,  thereby  greatly  disturbing 
the  plaintiffs,  should  not  be  rung  during  the  lives  of 
the  plaintiffs  or  the  survivor  of  them,  and  the  plaintiffs 
having  fulfilled  on  their  part,  and  the  bell  afterward  again 
rung,  the  parish  authorities  were  restrained  from  violating 

■  Holmes  v.  Eastern  Counties  R.R.  Co.,  3  K.  &  J.,  675  ;  Dietrichsen  v.  Cab- 
bum,  2  Phil,  52  ;  Gt.  Northern  R.R.  Co.  v.  Manchester,  Sheffield  &  Lincoln- 
shire R.R.  Co.,  5  De  G.  &  Sm.,  138;  Whittaker  v.  Howe,  3  Beav.,  383,  395. 

-'Hills  V.  CroU,  2  Phil.,  60;  Kerr  on  Injunc,  529.  See  post,  §117.  Where> 
however,  a  partner  agreed  to  exert  himself  for  the  benefit  of  the  firm  and  not 
carry  on  the  same  kind  of  business  except  as  a  partner,  it  was  held  that  the 
court  might,  if  the  partnership  were  subsisting,  grant  an  injunction  against  the 
breach  of  the  latter  stipulation,  though  it  had  no  power  to  enforce  the  former. 
Morris  v.  Coleman,  18  Ves.,  437  ;  S.  C,  6  Sim.,  335. 


§115.      TO  PREVENT  BREACH  OF  AGREEMENT.        I45 

their  agreement.'  The  violation  of  covenants  in  separation 
deeds  has  been  restrained,  as :  that  the  husband  will  not 
molest  his  wife  ; ""  or  that  he  will  not  take  any  legal  pro- 
ceedings for  the  restitution  of  conjugal  rights  ; '  or  that  the 
wife  will  not  endeavor  to  compel  her  husband  to  allow  her 
"any  further  or  greater  support,  maintenance,  or  alimony" 
than  a  certain  annuity."  Where  a  creditor  enters  into  an 
agreement  with  his  principal  debtor  for  forbearance  to  sue, 
and  the  creditor,  notwithstanding,  obtains  a  judgment  at 
law  against  the  sureties  before  they  have  notice  of  the  con- 
tract of  indulgence,  equity,  on  the  application  of  the  sure- 
ties, will  perpetually  enjoin  the  judgment.^  Where  a  ven- 
dor of  land  covenants  with  the  vendee  that  he  will  not  bring 
a  suit  on  the  bond  given  for  the  purchase  money  until  the 
quantity  of  land  sold  is  ascertained,  a  violation  of  the  agree- 
ment by  the  vendor  will  be  restrained  by  injunction.' 
W^here  the  maker  of  a  medicine  entered  into  a  contract 
w^ith  a  person  that  in  consideration  the  latter  would  adver- 
tise-and  sell  the  medicine,  the  former  would  not  furnish  it 
to  anybody  else  for  sale  under  a  specified  price,  and  such 
person  fulfilled  the  contract  on  his  part,  it  was  held  that  the 
maker  of  the  medicine  would  be  enjoined  from  violating 
the  agreement.'  So,  an  author  who,  in  selling  a  work, 
covenanted  not  to  do  anything  to  injure  the  sale  of  the 
work,  was  enjoined  from  publishing  a  rival  work  on  the 
same  subject.* 

§  115.  To  prevent  breach  of  agreement  in  relation  to 
use  of  premises. — Equity  will  restrain  by  injunction  the 
violation  of  a  covenant  in  a  deed  restricting  the  use  of  land 
sold.     A.,  owning  two  adjoining  lots  bounded  on  a  river, 

*  Martin  v.  Nutkin,  2  P.  Wms.,  266.  This  was  one  of  the  earliest  of  the  cases 
in  which  the  court  interfered  by  perpetual  injunction  to  enforce  performance  of 
negative  agreements. 

"  Sanders  v.  Rodway,  22  L.  J.  Ch.,  230.  '  Hunt  v.  Hunt,  8  Jur.  N.  S.,  86. 

■*  Williams  v'.  Baily,  L.  R.  2,  Eq.  731. 

*  Armistead  v.  Ward,  2  Patton  &  Heath,  504. 

°  Bullitt  V.  Songster,  3  Munf.,  54.  '  Dietrichsen  v.  Cabburn,  2  Phil.,  52. 

*  Barfield  v.  Nicholson,  2  Sim.  «&  Stu.,  i  ;  2  L.  J.  Ch.,  90. 

10 


146  INJUNCTION.  §    115- 

upon  one  of  which  stood  his  family  mansion,  sold  the  other 
lot  to  B.,  who  covenanted  that  he  would  not  devote  the  lot 
to  any  purpose  which  might  be  offensive  or  injurious  to  the 
occupier  of  the  adjoining  property,  and  that  he  would  not 
use  it  for  a  stone  quarry.  B.  having  leased  his  river-front 
for  the  construction  of  a  wharf  and  railroad,  to  be  used  for 
the  transportation  and  loading  into  vessels  of  stone  from  a 
quarry,  he  was  restrained  by  injunction.'  The  owner  of 
real  estate  in  a  city  divided  it  into  lots,  which  he  sold  to  dif- 
ferent persons  by  conveyances  containing  mutual  covenants 
between  the  grantor  and  grantees  against  the  erection  of 
any  structure  or  the  carrying  on  of  any  business  which 
might  be  offensive  to  the  neighborhood.  It  was  held  that 
the  covenants  in  the  several  deeds  were  for  the  mutual 
benefit  and  protection  of  all  of  the  purchasers  of  lots,  and 
that,  although  a  previous  purchaser  could  not  maintain  an 
action  at  law  upon  the  covenant  in  the  deed  to  a  subsequent 
purchaser,  yet  that  he  was  entitled  to  protection  by  injunc- 
tion against  the  carrying  on  of  an  offensive  business  upon 
the  lot  of  such  subsequent  purchaser.'  Where  the  propri- 
etors of  a  public  garden  having  let  a  house  adjoining 
thereto,  with  a  covenant  not  to  carry  on  certain  trades 
therein  upon  penalty  of  forfeiture  of  the  lease  and  the  pay- 
ment of  fifty  pounds  a  month  to  the  proprietors  of  the  gar- 
den, and  the  lessees  having  executed  a  sub-lease  to  the  de- 
fendant, he  was  enjoined  from  carrying  on  the  prohibited 
business,  the  court  saying,  "  It  is  in  the  nature  of  specific 
performance.  I  think  you  will  find  many  cases.  The 
breach  of  the  agreement  may  consist  in  repeated  acts."'- 
And  where  commissioners  leased  a  lot  of  land  to  the  plain- 
tiffs, in    order   that   the    latter   might   erect  a  club-house 

'  Seymour  v.  McDonald,  4  Sandf.  Ch.,  502. 

'  Barrow  v.  Richards,  8  Paige  Ch.,  351. 

^Barrett  v.  Blagrave,  5  Ves.,  555;  S.  C.  6,  lb.  104;  and  see  Williams  v. 
Williams,  3  Mer.,  157  ;  Fleming  v.  Snook,  5  Beav.,  252  ;  Kemp  v.  Sober,  i  Sim. 
N.  S.,  520  ;  Johnstone  v.  Hall,  2  K.  «S:  J.,  423  ;  Wickenden  v.  Webster,  6  E.  & 
B.,  387  ;  Hodson  v.  Coppard,  i  H.  &  M.,  167  ;  Steward  v.  Winters,  4  Sandf.  Ch., 
587. 


§  115.     TO  PREVENT  BREACH  OF  AGREEMENT.        I47 

thereon,  and  agreed  that  the  adjoining  land  should  be  laid 
out  as  a  garden,  and  not  be  built  on,  and  the  commission- 
ers afterward  permitted  stables  to  be  erected  on  the  land, 
the  court  enforced  specific  performance  of  the  agreement 
by  enjoining  the  defendants  from  continuing  their  erec- 
tions, and  from  allowing  such  as  were  already  there  to  re- 
main.' A  covenant  by  a  railroad  company,  in  a  deed  of 
purchase,  not  to  erect  any  building  on  the  land  more  than 
eighteen  feet  in  height  within  eighty  feet  of  other  property 
of  the  vendor,  was  enforced  by  injunction.'  And  where 
land  w^as  sold  upon  condition  that  the  purchaser  would  not 
build  on  it  until  permission  was  given,  he  was  restrained 
from  building  before  he  had  received  permission.'  A  cove- 
nant, not  in  a  lease,  having  been  inserted  in  an  assignment 
of  the  lease,  not  to  carry  on  a  particular  trade  on  the  de- 
mised premises,  a  lessee  of  the  assignee  w^as  restrained  from 
carrying  it  on.'  And  a  person  who  covenanted  not  to  let 
any  house  as  a  hotel,  or  any  land  for  the  erection  of  any 
house  to  be  used  as  a  hotel,  or  inn,  within  certain  limits, 
was  restrained  from  doing  any  act  in  violation  of  the  cove- 
nant." Where  the  lessee  of  a  store  was  restricted  by  the 
lease  to  occupy  the  premises  for  the  regular  dry-goods  job- 
bing business,  and  for  no  other,  it  was  held  that  he  might 
be  restrained  by  injunction  from  using  the  store  for  any  other 
purpose,  without  its  being  shown  that  the  complainant  would, 
otherwise  sustain  irreparable,  or  even  substantial,  injury.  In 
such  case,  the  ground  of  relief,  as  stated  by  the  court,  was 
as  follows  :  "  Where  parties,  by  an  express  stipulation,  have 
themselves  determined  that  a  particular  trade  or  business 
conducted  by  the  one  will  be  injurious  or  offensive  to  the 

'  Rankin  v.  Huskisson,  4  Sim.,  13. 

=  Lloyd  V.  London,  Chatham  &  Dover  R.R.  Co.,  2  DeG,  J.  &  S.,  568.  And  see 
Clark  V.  Martin,  49  Pa.  St.,  289,  in  which  the  violation  of  a  covenant  not  to 
erect  a  building,  on  a  lot  sold,  more  than  ten  feet  in  height,,  was  restrained  by  in- 
junction. 

'  Atty.  Genl.  v.  Briggs,  i  Jur.  N.  S.,  1084. 

*  Jay  V.  Richardson,  30  Beav.,  563 ;  Clements  w  Welles,  i  L.  R.  Eq.,  200. 

*  Sanders  v.  Rodway,  16  Beav.,  211. 


148  INJUNCTION.  §    116. 

Other,  and  there  is  a  continuing  breach   of  the  stipulation 
by  the  one,  which  the  court  can   perceive   may  be  highly- 
detrimental  to  the  other,  although,  on  the  facts  presented, 
it  is  not  clear  that  there  is  serious  injury,  and  it  is  manifest 
that  the  extent  of  the  injury  is  difficult  to  be  ascertained 
or  measured  in  damages,  it  is  the  duty  of  the  court,  by  in- 
junction, to  restrain  further  infractions  of  the  covenant, 
thereby  preventing  a  multiplicity  of  petty  suits  at  law,  and 
at  the  same  time  protecting  the  rights  of  the  complainant."  ' 
§  II 6.   To  ^'estrain  application  to  legislattire  i7i  violation 
of  agreement. — Specific  performance  of  an  agreement  not 
to   apply  to  the  legislature  may,  in  a  proper  case,  be  en- 
forced by  means  of  an  injunction  ;  equity  in  such  case  act- 
ing in  personam,  and  not  in  any  way  interfering  with  the 
legislative  proceedings."     It  will  not  be  a  ground  for  an  in- 
junction that  the  proposed  application  will  annul  existing 
rights  and  create  new  ones,  as  that  would  imply  a  right  to 
restrain  legislative  action  in  all  such  cases.'     So,  such   an 
agreement  will  not  be  enforced  by  restraining  its  violation, 
even  where  it  was  entered  into  for  the  protection  of  pri- 
vate interests,  if  the  proposed  application  can  be  justified 
on  grounds  of  public  policy.'     Where  company  A  agreed 

*  Steward  v.  Winters,  4  Sandf.  Ch.,  628.  Although  covenants  in  total  re- 
straint of  trade  are  void  upon  grounds  of  public  policy  (Mitchell  v.  Reynolds,  i 
P.  Wms.,  181  ;  Chesman  v.  Nainby,  2  Stra.,  739;  S.  C,  2  Ld.  Raym.,  1456; 
Wickens  v.  Evans,  3  Y.  &  J.,  318  ;  Mallan  v.  May,  11  M.  &  W.,  653  ;  Ward  v. 
Byrne,  5  lb.,  548;  Hinde  v.  Gray,  i  M.  &  G.,  195),  yet  covenants  in  partial  re- 
straint of  trade,  where  the  limitation  is  reasonable,  will  be  enforced  by  injunc- 
tion, as  they  encourage  the  employment  of  capital  and  promote  industry.  Homer 
V.  Ashford,  3  Bing.,  326 ;  Tallis  v.  Taliis,  i  E.  &  B.,  391  ;  Mumford  v.  Gething, 
7  C.  B.  N.  S.,  305.  The  court  will  not  enforce  by  injunction  a  covenant  which 
is  vague  and  indefinite:  Mann  v.  Stephens,  15  Sim.,  379;  De  Mattos  v.  Gibson, 
4  DeG.  &  J.,  276  ;  Paris  Chocolate  Co.  v.  Crystal  Palace  Co.,  i  Sm.  &  G.,  119  ; 
Bernard  v.  Meara,  12  Jr.  Ch.,  389  ;  Armstrong  v.  Courtney,  15  lb.,  138  ;  Low  v. 
Innes,  10  Jur.  N.  S.,  1037;  or  harsh  and  oppressive:  Kimberley  v.  Jennings,  6 
Sim.,  340  ;  Talbot  v.  Ford,  13  lb.,  173 ;  Croft  v.  Haw,  5  L.  J.  Ch.  N.  S.,  305  ; 
or  if  by  the  enforcement  of  the  contract  one  of  the  parties  will  obtain  a  con- 
siderable advantage  at  the  expense  of,  and  without  a  corresponding  benefit  to, 
the  other :  Mann  v.  Stephens,  supra  ;  Shrewsbury  &  Birmingham  R.R.  Co.  v. 
London  &  Northwestern  R.R.  Co.,  6  H.  L.,  113. 

^  Ware  v.  Grand  Junction  Water-Works  Co.,  2  Russ.  &  M.,  470,  483.  And 
see  Atty.  Genl.  v.  Manchester  &  Leeds  R.R.  Co.,  i  Rail.  Cas.,  436. 

=  Heathcote  v.  North  Staffordshire  R.R.  Co.,  2  M'N.  &  G.,  100. 

"  Lancaster  &  Carlisle  R.R.  Co.  v.  Northwestern  R.R.  Co.,  2  K.  &  J.,  293. 
See  Stockton  &  Hartlepool  R.R.  Co.  v.  Leeds,  etc.,  R.R.  Co.,  2  Phil.,  666. 


§  117.     IN  CASE  OF  BREACH  OF  ENGAGEMENT.        I49 

• 

with  company  B  not  to  make  any  line  connecting  their  re- 
spective roads  excepting  one,  apphcation  for  which  had 
already  been  made,  in  consideration  that  company  B  would 
support,  instead  of  oppose  (as  they  had  before  done),  the 
application  of  company  A  for  the  last-mentioned  line,  and 
the  former  performed  their  part  of  the  agreement,  and  the 
application  succeeded,  the  court  nevertheless  refused  to 
enjoin  the  defendants  from  applying  to  Parliament  in  vio- 
lation of  their  agreement :  for  the  reason  that  if  such  an 
application  were  successful,  it  would  be  so  on  public 
grounds  ;  and  if  unsuccessful,  the  breach  of  the  agreement 
might  be  compensated  in  damages." 

§  117.  In  case  of  breach  of  engagement  for  personal  serv- 
ices.— Equity  formerly  declined  to  restrain  the  violation  of  a 
negative  stipulation  in  a  contract  when  it  could  not  enforce 
the  affirmative  part  of  the  agreement,  the  aggrieved  party 
being  obliged  to  seek  his  redress  at  law.  Thus,  where  an 
actor  entered  into  an  agreement  with  the  proprietors  of  Co- 
vent  Garden  Theatre  to  perform  there  for  twenty-four  nights, 
and  in  the  meantime  not  to  act  at  any  other  place  in  Lon- 
don, it  was  held  that  as  the  court  could  not  enforce  the  posi- 
tive part  of  the  contract,  it  would  not  restrain  by  injunction  a 
breach  of  the  negative  part.'     So  an  actor  who  had  agreed  in 

'  Lancaster  &  Carlisle  R.R.  Co.  v.  Northwestern  R.R.  Co.,  supra. 

^  Kemble  v.  Kean,  6  Sim.,  333 ;  subsequently  overruled  in  Webster  \^  Dillon, 
3  Jur.  N.  S.,  432.  In  Kemble  v.  Kean,  supra,  the  terms  of  the  agreement  were 
complied  with  except  as  to  ten  nights,  when  Kean  left  to  perform  at  Drury 
Lane.  The  plaintiff  thereupon  filed  a  bill  praying  that  the  defendant  might  be 
decreed  specifically  to  perform  his  contract,  and  that  in  the  meantime  he  might 
be  restrained  from  acting  at  Drury  Lane.  The  lord  chancellor  granted  an  in- 
junction ex  parte  restraining  the  defendant  from  acting  at  Drury  Lane  until  he 
had  acted  the  ten  nights  at  Covent  Garden,  with  liberty  for  the  defendant  to  move 
to  dissolve  the  injunction  before  the  vice-chancellor.  The  latter  dissolved  the 
injunction  on  the  ground  that  the  court  had  no  power  to  enforce  such  a  con- 
tract. He  said :  "  The  bill  is  filed  for  the  purpose  of  enforcing  an  agreement 
which  mainly  consists  in  the  defendant's  acting  ;  and  it  appears  to  me  that  it  is 
utterly  impossible  that  this  court  can  execute  such  an  agreement.  In  the  first 
place,  independently  of  the  difficulty  of  compelling  a  man  to  act,  there  is  no 
time  stated,  and  it  is  not  stated  in  what  character  he  shall  act  ;  and  the  thing  is 
altogether  so  loose  that  it  is  perfectly  impossible  for  the  court  to  determine  upon 
what  scheme  of  things  Mr.  Kean  shall  perform  his  agreement.  There  can  be 
no  prospective  declaration  or  direction  of  the  court  as  to  the  performance  of  the 
agreement ;  and,  supposing  Mr.  Kean  should  resist,  how  is  such  an  agreement  to 


150  INJUNCTION.  §    117- 

• 

writing  with  a  theatrical  manager  not  to  perform  at  any 
other  theatre  for  a  term  of  years,  having  broken  his  engage- 
ment, and  a  bill  having  been  filed  to  restrain  him  by  in- 
junction, and  to  compel  performance,  it  was  held  that  it 
was  a  mere  matter  between  employer  and  employed,  and 
that  the  remedy  was  at  law  ;  and  an  injunction  which  had 
been  granted  was  dissolved/  In  a  subsequent  case  it  was 
allcpfed  in  the  bill  that  the  defendant  had  contracted  with 
the  plaintiff  to  perform  and  sing  in  concerts  and  operas, 
and  that  he  would  not  enter  into  an  engagement  with  any- 
body else,  that  he  was  about  to  form  other  engagements, 
and  to  leave  the  State,  and  the  plaintiff  prayed  for  a  decree 
of  specific  performance,  and  for  an  injunction,  and  a  writ 
of  ne  exeat.  On  a  motion  by  the  defendant  to  dissolve  the 
injunction,  and  discharge  the  ne  exeat,  the  court,  in  grant- 
ing the  motion,  said:  "Although  there  may  be  cases  in 
which  a  court  of  equity  will  decree  specific  performance  of 
a  contract  for  personal  services,  still,  this  is  not  one  of  that 
character.  The  difficulty,  if  not  the  utter  impracticability, 
of  compelling  a  specific  performance  of  the  contract  set 
forth  in  the  bill,  is  a  conclusive  reason  why  this  court  should 
refuse  its  interference.  The  complainant  should  be  left  to 
his  remedy  at  law.  If,  however,  there  were  any  doubt  upon 
principle,  yet  I  consider  it  abundantly  settled  upon  author- 
ity, that  the  complainant  can  have  no  relief  upon  the  equity 
side  of  the  court.'""  But  it  is  obvious  that  a  tenacious  ad- 
herence to  the  foregoing  doctrine  would  often  deprive  the 
complainant  of  all  redress.  In  England  a  more  just  prac- 
tice is  now  established ;  and  the  tendency  in  the  United 
States  is  in  the  same  direction.      In  Lumley  v.  Wagner," 

be  performed  by  the  court  ?  Sequestration  is  out  of  the  question.  And  can  it 
be  said  that  a  man  can  be  compelled  to  perform  an  agreement  to  act  at  a  theatre 
by  this  court  sending  him  to  the  Fleet  for  refusing  to  act  at  all  ?  There  is  no 
method  of  arriving  at  that  which  is  the  substance  of  the  contract  between  the 
parties  by  means  of  any  process  which  this  court  is  enabled  to  issue." 

'  Hamblin  v.  Dinneford,  2  Edw.  Ch.,  529.  See  De  Rivafinoli  v.  Corsetti,  4 
Paige  Ch.,  264  ;  Phillips  v.  Stauch,  20  Mich.,  369 ;  Burke  v.  Seeley,  46  Mo.,  334. 

*  Sanquirico  v.  Benedetti,  i  Barb.,  315.  M  De  G.  M.  &  G.,  604. 


§117.  IN    CASE    OF    BREACH    OF    ENGAGEMENT.  I5I 

the  plaintiff  had  entered  into  a  written  contract  with  Ma'Ue 
Wagner,  cantatrice  to  the  King  of  Prussia,  for  her  services 
for  three  months  at  his  theatre  in  London,  upon  certain 
specified  terms  ;  and  there  was  a  condition  inserted,  that 
she  should  not  use  her  talents  at  any  other  theatre,  nor  in 
any  concert  or  re-union,  without  the  written  consent  of  the 
plaintiff.  She  subsequently  entered  into  an  engagement  to 
sing  at  another  theatre.  The'plaintiff  thereupon  filed  a  bill 
for  an  injunction  to  restrain  her  from  performing  or  sing- 
ing in  violation  of  her  engagement  with  him.  An  injunc- 
tion having  been  granted  by  the  vice-chancellor,  a  motion 
to  dissolve  it,  which  came  before  the  lord  chancellor,  was 
denied.'  So,  it  has  been  held  that  w^here  a  party  enters  into 
a  written  contract  with  an  artist,  that  the  latter  shall  work 
for  the  former  for  a  certain  period  at  an  agreed  price,  and 
shall  not  work  for  any  other  person  during  said  time,  such 
artist  may  be  restrained  by  injunction  from  violating  his 
agreement  by  working  for  anybody  else.''     Where  an  actor 


'  Lord  Chancellor  St.  Leonards  said :  "  Where  is  the  mischief  of  exercising 
this  jurisdiction  ?  I  cannot  compel  her  to  perform,  of  course.  That  is  a  juris- 
diction the  court  does  not  possess  ;  and  it  is  very  proper  it  should  not  possess  it. 
But  what  cause  of  complaint  is  it,  that  I  should  prevent  her  from  doing  an  act 
which  may  compel  her  to  do  what  she  ought  to  do  ?  Though  I  cannot  compel 
the  execution  of  the  whole  contract,  I  leave  nothing  unaccomplished  which  I 
hold  it  to  be  in  the  power  of  the  court  to  accomplish.  By  preventing  her  from 
doing  the  act,  there  will  be  no  case  in  an  action  by  Mr.  Lumley  against  her  for 
such  an  amount  of  vindictive  damages  as  a  jury  might  possibly  be  disposed  to 
give  if  she  exercised  her  talents  in  a  rival  theatre." 

*  Fredericks  v,  Mayer,  13  How.  Pr.,  566,  N.  Y.  Superior  Court.  In  this  case, 
Hoffman,  J.,  said  :  "  I  am  inclined  to  the  opinion,  that  services  which  involve  the 
exercise  of  powers  of  mind,  which  in  many  cases,  as  of  writers,  and  performers, 
are  purely  and  largely  intellectual,  may  form  a  class  in  which  the  court  will  in- 
terfere. Such  services  are  generally  individual,  and  peculiar.  They  exist  in  nat- 
ure, or  in  degree,  with  some  modification  of  character  or  expression  in  the  one 
person.  The  element  of  mind  exhibited  in  the  subject  of  the  contract,  as  dis- 
tinguished from  what  is  mechanical  and  material,  may  perhaps  furnish  a  rule  of 
distinction  and  decision."  An  injunction  was  denied  in  the  foregoing  case,  on 
the  ground  that  the  plaintiff  had  no  house  or  place  of  business  distinct  from  the 
person  for  whom  the  defendant  worked  in  alleged  violation  of  his  agreement, 
but  was,  in  fact,  a  partner  of  such  person.  In  a  subsequent  case,  the  same  judge 
reiterated  the  foregoing  views,  as  follows  :  "  I  am  unwilling  to  hold,  and  do  not 
think  I  am  bound  by  the  cases  to  hold,  that  where  there  are  clear  and  absolute 
negative  stipulations  on  the  part  of  a  party,  upon  a  subject  involving  in  part 
the  exercise  of  intellectual  qualities,  and  a  special  case  of  the  impossibility  or 
great  difficulty  of  measuring  damages  is  presented,  that  the  jurisdiction  to  forbid 
the  violation  of  such  covenants  does  not  exist."  Butler  v.  Galetti,  21  How.  Pr.,  465. 


152  INJUl^CTION.  §   TI7. 

having  engaged  to  perform  at  the  plaintiff's  theatre  for  a 
certain  sum,  and  not  to  perform  elsewhere  during  the  time, 
entered  into  an  engagement  to  perform  at  another  theatre 
before  the  expiration  of  the  contract,  it  was  held  that  he 
might  be  restrained  from  carrying  out  his  second  engage- 
ment.' But  a  motion  for  an  injunction  to  prevent  a  public 
dancer  from  violating  a  covenant  not  to  render  her  personal 
services  to  any  other  person  than  the  plaintiff,  was  denied, 
where  it  appeared  that  the  plaintiff  had  no  place  at  which 
the  defendant  could  fulfil  her  engagement,  and  that  conse- 
quently he  was  not  sustaining  any  damage.'  An  agreement 
entered  into  between  a  publisher  and  an  author,  that  the 
latter  should  write  for  the  former,  and  should  not,  during 
the  continuance  of  the  agreement,  write  for  any  other  publi- 
cation, was  enforced  by  injunction  ;  and  another  publisher 
was  restrained  from  employing  him.'  In  England  it  is  now 
held  that  an  actor,  who  has  agreed  to  perform  for  a  definite 
time  at  a  particular  theatre,  may  be  restrained  by  injunction 
from  performing  at  any  other  theatre  during  the  period  of 
his  engagement,  without  any  negative  clause  in  the  contract 
restricting  him  from  performing  elsewhere.* 

1  Hayes  v.  Willio,  11  Abb.  Pr.  N.  S.,  167. 

=  De  Pol  V.  Sohike,  7  Robertson,  N.  Y.,  280. 

'  Stiff  V.  Cassell,  2  Jur.  N.  S.,  348. 

*  Montague  v.  Flockton,  L.  R.  16,  Eq.  189.  "A  man  agreeing-  to  act  in  one 
particular  theatre  during  the  season,  is  party  to  a- contract  that  he  will  act  there 
and  not  anpvhere  else.  A  negative  contract  is  as  necessarily  implied  as  if  it 
had  been  plainly  expressed."  Ibid,  per  Malins  v.  C,  referring  to  De  Mattos  v. 
Gibson,  4  De  G.  &  J.,  276,  which  involved  the  same  principle.  But  in  opposition 
to  this  reasonable  and  just  proposition,  it  was  not  long  since  held  in  Pennsyl- 
vania, that  the  personal  services  of  an  actor  would  not  be  enforced  by  a  court 
of  equity  by  enjoining  him  from  perfonning  at  any  other  theatre.  The  court,  per 
Hare,  ].,  said  :  "  Is  it  not  obvious  that  a  contract  for  personal  services  thus  en- 
forced, would  be  but  a  mitigated  form  of  slavery,  in  which  the  party  would  have 
lost  the  right  to  dispose  of  liimself  as  a  free  agent,  and  he,  for  a  greater  or  less 
length  of  time,  subject  to  the  control  of  another?  And  as  this  objection  is  to 
the  substance  of  the  relief  desired,  and  not  to  the  form,  it  must  prevail  even 
when  the  agreement  to  render  the  service  is  coupled  with  a  stipulation  that  the 
contracting  party  will  not  enter  into  the  employment  of  another  master  or  en- 
gage in  work  of  any  other  kind.  Otherwise  the  court  might  be  compelled  to 
transcend  the  limits  within  which  its  jurisdiction  ought  to  be  confined,  and  en- 
gage in  a  contest  where  the  sympathies  of  mankind  would  be  with  the  weaker 
party,  by  simply  coupling  the  affirmative  words  with  a  negative  stipulation  that 
the  covenantor  will  not  do  for  others  what  he  agrees  to  do  for  the  covenantee. 


§  ii;. 


IN  CASE  OF  BREACH  OF  ENGAGEMENT.        1 53 


I  deem  it  unnecessary  to  carry  the  argument  further  on  a  point  which  must  be 
intuitively  apprehended  by  every  man  of  sound  judginent."  Ford  v.  Jermon,  6 
Phila.,  6.  A  short,  and  it  seems  to  us  conclusive,  answer  to  the  foregoing  is,  that 
the  actor,  in  the  given  case,  has  sold  his  services  for  the  stipulated  time,  and  by 
parity  of  reasoning,  the  seller  of  some  rare  article  might,  notwithstanding  his 
agreement,  proceed,  in  violation  of  it,  to  dispose  of  the  same  thing  to  another 
person,  and  be  deemed  by  the  court  an  object  of  sympathy,  and  entitled  to  its 
encouragement  and  protection  in  a  proceeding  essentially  unfair  and  dishonora- 
ble, if  not  dishonest.  In  this  instance,  the  weaker  party  is  the  employer,  and  not 
the  employe,  who,  if  permitted  to  break  his  engagement,  has  the  other  in  his 
power,  and  may  at  any  time  subject  him  to  serious  loss.  The  ordinary  case  of 
hiring  and  service  presents  a  totally  different  question. 


CHAPTER  IV. 

WRIT      OF      NE      EXEAT. 

1 1 8.  Orig-in  and  nature. 

119.  Demand  must  be  equitable  and  certain. 

120.  Not  granted  when  defendant  held  to  bail. 

§  1 1 8.  Introduction  and  how  employed. — The  writ  of  ne 
exeat,  which  is  a  remedy  appertaining  to  the  exclusive  ju- 
risdiction of  equity,  is  sometimes  called  into  requisition  in 
suits  for  specific  performance.  It  was  unknown  to  the 
ancient  common  law,  which  permitted  any  man  to  depart 
the  realm  at  his  pleasure.'  But  being  of  practical  impor- 
tance, and  often  indispensable  to  justice,  it  dates  from  a 
very  early  period — probably  between  the  reign  of  King 
John  and  that  of  Edward  I.  It  originated  in  the  idea  that, 
as  every  subject  was  bound  to  defend  the  king  and  his 
realm,  the  king  might,  as  a  part  of  the  prerogative  of  the 
Crown,  command  any  man  not  to  leave  the  realm.  In  this 
country  it  is  a  writ  of  right,  rather  than  a  prerogative  writ. 
It  is  in  general  only  granted  in  case  of  equitable  debts  and 
claims ;  there  being  in  relation  to  legal  claims  an  adequate 
remedy  at  law.'  It  has  been  defined,  "A  mesne  process, 
issuing  from  the  court  of  chancery,  to  hold  a  party  to  equi- 
table bail,  that  he  may  not  depart  from  the  realm  or  the 
jurisdiction  of  the  court,  but  be  present  with  his  body  to 
answer  any  decree  which  the  court  of  chancery  may  make 
in  the  case  against  him,  and  commanding  the  arrest  and 
imprisonment  of  the  defendant  if  he  or  she  fail  to  furnish 
such   bail.'"     It  "bears  no   resemblance  to  the   mesne  or 

'  Beames  on  ne  exeat,  i. 

"  Seymour  v.  Hazard,  i  Johns.  Ch.,  i  ;  Forrest  v.  Forrest,  10  Barb.,  46. 
^  Adams  v.  Whitcomb,  46  Vt.,  708,  per  Ross,  J. ;  3  Blk.  Com.,  213:3  Danl. 
Ch.  Pr.,  1 801. 


§119.  WHEN    GRANTED    OR    REFUSED.  1 55 

final  process  of  the  common  law  courts.  Its  primary  pur- 
pose is  not  to  arrest  the  defendant,  nor  to  put  him  in  safe 

custody  during  the  pendency  of  the  litigation It 

commands  the  sherifT  to  cause  the  defendant  to  come 
before  him  and  give  sufficient  security  that  he  will  not  go 
without  the  State  into  foreign  parts  without  leave  of  the 
court ;  and  if  he  shall  refuse  to  give  such  security,  then  to 
commit  him  to  the  common  gaol  of  the  county  until  he  do 
so  of  his  own  accord.  Until  he  refuses  to  give  the  req- 
uisite security,  he  cannot  be  restrained  of  his  liberty ;  and 
when  he  has  given  it,  he  may  go  wherever  he  pleases,  pro- 
vided he  is  within  the  jurisdiction  of  the  court  when  its 
process  to  enforce  the  decree  issues.  In  the  meantime,  he 
is  not  deemed  to  be  in  the  custody  of  any  person."'  The 
remedy  need  not  necessarily  be  by  writ,  but  may  be  by  an 
order  that  the  party  within  a  limited  time  give  security  that 
he  will  not  depart,  and,  in  default,  that  an  attachment  issue 
for  contempt.'' 

§  119.  When  granted  or  refused. — It  must  be  shown 
that  there  is  not  an  adequate  remedy  at  law.'  Where,  how- 
ever, a  court  of  equity  has  concurrent  jurisdiction  with  the 
courts  of  law,  it  will  not  refuse  to  grant  a  writ  of  ne  exeat 
merely  because  the  plaintiff  has  a  remedy  at  law ; '  as  in 
the  case  of  a  vendor  of  land,  who,  although  he  may  proceed 
at  law  for  the  purchase  money,  is  yet  entitled  to  a  ne  exeat 
to  restrain  the  purchaser  from  going  abroad  until  he  has 


'  Brown,  J.,  in  Bushnell  v.  Bushnell,  15  Barb.,  309.  Whenever  the  defendant 
intends  to  leave  the  State,  the  complainant,  upon  producing  evidence  of  such 
intention  and  of  his  equitable  claim,  has  a  right  to  equitable  bail.  Mitchell  v. 
Bunch,  2  Paige  Ch.,  617.  The  writ  may  be  applied  for  at  any  stage  of  the  pro- 
ceedings. Dunham  v.  Jackson,  i  Paige  Ch.,  629;  but  see  Sharp  v.  Taylor,  11 
Sim.,  50,  The  power  of  a  court  of  equity  independently  of  any  statute  to  obtain 
security  for  the  performance  of  its  decree  by  ordering  by  a  writ  of  capias  the 
arrest  of  a  party  intending  to  leave  the  State  to  avoid  such  decree,  is  analogous 
to  the  practice  pertaining  to  the  writ  of  ne  exeat.  Samuel  v.  Wiley,  50  N.  H., 
353- 

"  Atty.-Genl,  v.  Mucklow,  i  Price,  289. 

3  Orme  v.  McPherson,  36  Ga.,  571. 

*  Lucas  V.  Hickman,  2  Stew.,  11  ;  Macdonough  v.  Gaynor,  18  N.  J.  Eq.,  249. 


156  WRIT    OF    NE    EXEAT.  §   ^19- 

given  security  for  the  amount.'  The  demand  must  in  gen- 
eral be  an  equitable  debt  or  pecuniary  claim  which  is  due, 
and  be  certain  or  capable  of  being  reduced  to  a  certainty." 
Therefore,  it  wnll  not  be  granted  on  the  ground  that  the 
plaintiff  is  apprehensive  that  the  defendant  may  not  be  will- 
ing to  fulfil  an  engagement  for  personal  services,  when, 
from  the  peculiar  nature  of  those  services,  they  cannot  be 
performed  until  a  future  day.'  A  general  unliquidated  de- 
mand, or  one  in  the  nature  of  a  claim  for  damages  w^hich 
cannot  be  regarded  as  a  debt  until  the  decree,  will  not  lay 
a  foundation  for  the  writ."  Where  the  demand  w^as  merely 
contingent,  consisting  of  the  claim  of  a  wife  against  her 
husband  under  a  marriage  settlement  in  case  she  survived 
him,  the  application  was  refused,  as  the  contingency  might 
never  happen.'  The  writ  was  refused  upon  a  bill  to  enforce 
an  agreement  to  give  the  plaintiff  a  bill  of  exchange  as  a 
security  for  a  demand.'  So,  the  writ  w^as  discharged  where 
the  plaintiff  claimed  that  he  was  entitled  to  it  on  the  ground 
that  the  defendant  was  bound  to  convey  to  him  one-half  of 
a  patent-right,  which  he  refused  to  do.'     A  ne  exeat  will  be 

'  Boehm  v.  Wood,  T.  &  R.,  332.  The  writ  will  be  granted,  notwithstanding 
the  vendor  has  a  lien  upon  the  land  for  the  purchase  money  which  he  may  en- 
force by  selling  the  land. 

"^  Whitehouse  v.  Partridge,  3  Swanst.,  365  ;  Bonesteel  v.  Bonesteel,  28  Wis., 
245.  A  petition  for  a  ne  exeat  alleged  that  the  petitioner  was  the  owner  by  as- 
signment of  two  promissory  notes  ;  that,  according  to  the  petitioner's  informa- 
tion and  belief  since  said  notes  were  made,  the  maker  had  sold  the  greater  part 
of  his  property  and  was  endeavoring  to  sell  the  remainder,  and  threatened  to 
leave  the  State  and  take  his  property  with  him,  and  said  that  he  would  not  pay 
the  notes.  It  was  held  that  in  a  case  like  the  foregoing,  not  of  an  equitable  nat- 
ure, the  plaintiff  must  show  by  his  petition,  by  facts  stated  and  circumstances 
detailed,  that  the  debtor  had  been  guilty  of  fraud,  or  that  there  was  a  strong  pre- 
sumption of  fraud  ;  which,  not  having  been  done,  the  judgment  of  the  court  be- 
low granting  the  writ  must  be  reversed.     Malcolm  v.  Andrews,  168  111.,  100. 

'  De  Rivafinoli  v.  Corsetti,  4  Paige  Ch.,  264. 

*  Graham  v.  Stucken  4  Blatchf.,  50. 

''  Anon.  I  Atk.,  521  ;  see  Porter  v.  Spencer,  2  Johns.  Ch.,  169  ;  Cox  v.  Scott, 
5  Harr.  &  Johns.,  384  ;  Brown  v.  Haff,  5  Paige  Ch.,  235.  A  party  may  have  re- 
lief in  some  cases  against  his  principal,  where  the  debt  has  become  due,  by  com- 
pelling the  principal  to  discharge  the  debt  in  exoneration  of  the  surety.  Gibbs 
V.  Mermaud,  2  Edw.  Ch.,  482. 

"  Blaydes  v.  Calvert,  2  J.  &.  W.,  211. 

'  Covvdin  v.  Cram,  3  Edw.  Ch.,  231.  Where  the  defendant  had  sold  and  con- 
v^eyed  all  of  his  property,  and  converted  the  same  into  money  or  choses  in  action. 


^    I  20.    CONSEQUENCE  OF  HOLDING  DEFENDANT  TO  BAIL.      1 57 

granted  in  a  suit  for  specific  performance  against  the  ven- 
dee where  the  purchase  money  constitutes  the  demand 
against  him,  the  payment  of  which  is  sought  to  be  enforced, 
when  it  clearly  appears  that  the  vendor  can  give  a  good 
title  and  the  defendant  is  about  to  leave  the  jurisdiction, 
"  because  there  is  an  equitable  moneyed  demand  of  indebted- 
ness, the  amount  of  which  governs  the  court  in  marking 
the  writ  for  bail.'" 

§  120.  Consequence  of  holding  defendant  to  bail. — A 
court  of  equity  will  not  grant  the  writ  if  the  defendant  has 
been  held  to  bail  for  the  same  demand.  Where,  therefore, 
the  vendor  caused  the  purchaser  to  be  arrested  at  law,  and 
held  to  bail  for  the  amount  of  the  purchase  money,  and  the 
plaintiff  having  discontinued  the  suit,  the  bail  was  discharged, 
a  writ  of  ne  exeat  afterward  obtained  by  the  same  plaintiff 
upon  a  bill  to  enforce  the  contract,  was  dismissed." 

and  was  threatening  to  leave  the  State  and  thereby  prevent  the  plaintiff  from 
having  an  accounting  and  settlement  of  partnership  transactions,  it  was  held 
that  a  writ  of  ne  exeat  was  properly  issued.  Dean  v.  Smith,  23  Wis.,  483  ;  see 
Myer  v.  Myer,  25  N.  J.  Eq.,  28.  In  Arkansas  the  statute  allows  the  writ  in  cases 
where  there  are  contracts  or  covenants  to  be  performed,  and  the  time  for  pay- 
ment or  performance  has  not  arrived,  if  the  complainant  entered  into  the  agree- 
ment in  good  faith,  and  without  any  information  of  an  intention  on  the  part  of 
the  defendant  to  leave  the  State.     Gresham  v.  Peterson,  25  Ark.,  377. 

'  McCoun  V.  C.  in  Cowdin  v.  Cram,  supra. 

'  Raynes  v.  Wyse,  2  Mer.,  472 ;  and  see  Amsinck  v.  Barklay,  8  Ves.,  594. 


BOOK     III. 

DEFENCES. 


CHAPTER   I. 

INCAPACITY    OF    PARTY. 

121.  What  subjects  considered. 

122.  Incapacity  of  defendant  to  contract. 

123.  Incapacity  of  plaintiff, 

124.  Person  holding  confidential  position. 

125.  Where  defendant  has  no  power  to  perform  agreement. 

126.  Party  acquiring  power  to  perform  subsequent  to  entering  into  contract. 

127.  Where  consent  of  third  person  is  necessary. 

128.  Agreement  substantially  carried  out. 

129.  Where  contract  is  illegal  in  form. 

130.  In  case  of  disability  as  to  part  of  contract. 

131.  Where  contract  is  in  the  alternative. 

§  121.  In  what  it  may  consist. — The  absence  of  jurisdic- 
tion where  the  contract  itself  is  such  that  the  court  cannot 
enforce  its  performance,  has  already  been  considered."  The 
objection  to  which  attention  is  now  called  is  wholly  differ- 
ent, not  having  to  do  with  the  nature  or  terms  of  the  agree- 
ment, or  the  power  of  the  court,  but  with  considerations 
personal  to  one  or  other  of  the  parties.  It  is,  moreover,  an 
objection  fundamental  in  its  character  and  not  peculiar  to 
the  jurisdiction  of  equity  in  specific  performance,  but 
equally  available  at  common  law  ;  and  it  is  one  which,  to  be 
understood  and  accepted,  requires  but  little  more  than  its 
announcement.  What  follows,  therefore,  under  this  head 
will  be  brief.  A  person  may  either  have  been  incapable  of 
contracting,  or  not  have  the  power  to  perform  the  agree- 
ment when  made.  The  former  is  to  be  judged  of  at  the 
time  of  the  contract,  while  the  question  as  to  inability  to 

'  Ante,  §  49. 


§§   122,    123-  OF  PARTY  BRINGING  SUIT.  1 59 

perform  is  to  be  determined  when  performance  is  required. 
Both  of  these  objections,  though  differing  as  matters  of 
defence,  seem  appropriately  to  range  themselves  under  one 
head  ;  and  they  will  therefore  form  the  subject  of  this 
chapter. 

§  122.  May  be  alleged  in  behalf  of  defendant. — It  will 
be  a  defence,  that  one  of  the  parties  to  the  contract  sought  to 
be  enforced  was  incapable  of  making  a  valid  agreement ; 
and,  on  the  principle  of  mutuality,  the  objection,  as  we  shall 
presently  see,  may  be  made  by  one  who  is  himself  compe- 
tent. Personal  incapacity  on  the  part  of  the  defendant  to 
enter  into  a  binding  agreement  at  the  time  it  is  alleged  to 
have  been  made,  will,  of  course,  be  a  sufficient  defence  to  a 
suit  for  specific  performance  :  as  in  case  of  temporary  dep- 
rivation of  reason  caused  by  gross  intoxication  ; '  but  not 
the  mere  fact  that  the  party  at  the  time  of  entering  into  the 
contract  had  partaken  freely  of  intoxicating  liquor,  in  the 
absence  of  fraud,  or  of  evidence  that  he  had  not  a  full  un- 
derstanding and  knowledge  of  what  he  was  doing." 

§  123.  Of  party  bringing  suit. — The  personal  incapacity 
of  the  plaintiff  at  the  time  of  fihng  the  bill  would  con- 
stitute a  defence  to  a  suit  for  specific  performance  ; '  but 
not  his  incapacity  when  he  entered  into  the  contract  if  his 
incapacity  has  since  been  removed.*  An  infant  cannot,  while 
an  infant,  enforce  the  contract ; '  nor  can  the  other  party 
during  the  infancy  rescind  it.'  But  when  an  infant,  after 
coming  of  age,  affirms  the  contract  by  filing  a  bill  for  spe- 

'  Malins  v.  Freeman,  2  Keen,  34;  Cooke  v.  Clayworth,  18  Ves.,  12  ;  Cragg  v. 
Holme,  lb.,  14,  n. ;  Nagel  v.  Baylor,  3  Dr.  &  W.,  60;  Campbell  v.  Ketcham,  I 
Bibb.,  406  ;  Wigglesworth  v.  Steers,  i  Hen.  &  Munf.,  70  ;  White  v.  Cox,  3  Hayw., 
82 ;  Morrison  v.  McLeod,  2  Dev.  &  Batt.,  221  ;  Ford  v.  Hitchcock,  8  Ohio,  214; 
Conant  v.  Jackson,  16  Vt.,  335  ;  Prentice  v.  Achorn,  2  Paige  Ch.,  30;  Donelson 
V.  Posey,  13  Ala.,  752  ;  Cavender  v.  Waddingham,  2  Mo.  App.,  551. 

''Lightfootv.  Heron,  3Y.  &.C.  Ex.,  586;  Shaw  v.  Thackray,  i  Sm.  &  G.,  537. 
See  I  Story's  Eq.  Juris.,  Sec.  230,  et  seq. ;  post,  %  162, 

■'  Flight  V.  Bolland,  4  Russ.,  298 ;  Richards  v.  Green,  23  N.  J.  Eq.,  538. 

*  Clayton  v.  Ashdown,  9  Vin.  Abr.,  393. 

^  Flight  V.  Bolland,  supra.  An  infant  cannot  maintain  a  suit  for  specific  per- 
formance, because  the  contract  could  not  be  enforced  against  him. 

°  Smith  V.  Bowen,  i  Mod.,  25  ;  Shannon  v.  Bradstreet,  i  Sch.  &  Lef.,  58. 


l6o  INCAPACITY    OF    PARTY.  §    1 24. 

cific  performance,  or  otherwise,  it  becomes  mutual,  and  he 
is  bound  by  it/  A  married  woman  is  entitled  to  a  specific 
performance  of  her  contract  of  purchase  when  her  separate 
estate  is  sufficient  to  enable  her  to  fulfil  her  obligations 
under  it/ 

§  124.  On  accottnt  of  fidziciary  relation. — The  inca- 
pacity of  a  party  to  contract  may  be  objected,  on  the 
ground  that  he  is  a  trustee,  guardian,  agent,  or  other  person 
holding  a  confidential  position.  But  questions  of  this 
character  depend  upon  the  general  doctrines  of  the  court 


•  Milliken  v.  Milliken,  8  Ired.  Eq.,  16. 

-  Hulme  V.  Tenant,  i  Bro.  C.  C,  16.  In  the  case  oi femes  covert,  the  court  pro- 
ceeds upon  the  principle  that  if  a  married  woman  have  not  separate  property, 
she  is  incapable  of  contracting ;  and  if  she  have,  she  can  only  contract  in  rela- 
tion to  that ;  and  the  remedy  is  against  such  property,  and  not  against  her  per- 
sonally. Francis  v.  Wigzell,  i  Mad.,  258  ;  Aylett  v.  Ashton,  i  My.  and  Cr.,  105  ; 
Humphreys  v.  HoUis,  Jac,  73.  Thejpower  of  the  wife  to  contract  with  her  hus- 
band is  not  restricted  to  her  separate  property,  but  extends  to  other  matters, 
as  to  which  she  may  be  regarded,  for  the  purposes  of  the  contract,  as  a  feme 
sole.  Thus,  a  wife  suing  her  husband  for  a  divorce,  may  contract  with  him  to 
abandon  the  suit.  Vansittart  v.  Vansittart,  4  K.  &  J.,  62.  "  A.  feme  covert  is 
not  competent  to  enter  into  contracts  so  as  to  give  a  personal  remedy  against 
her.  Although  she  may  become  entitled  to  property  for  her  separate  use,  she  is 
no  more  capable  of  contracting  than  before  ;  a  personal  contract  would  be  within 
the  incapacity  under  which  a.  feme  covert  labors."  Lord  Cottenham,  i  My.  & 
Cr.,  Ill,  112.  A  married  woman  possessed  of  separate  property,  and  living 
apart  from  her  husband,  verbally  agreed  for  the  lease  of  a  house.  The  agree- 
ment was  reduced  to  writing,  signed  by  the  lessor's  agent,  and  handed  to  her. 
She  did  not  execute  it,  but,  in  letters  written  by  her,  referred  to  it  as  an  agree- 
ment ;  and  she  took  possession.  In  a  suit  by  the  lessor  against  her  and  her  trus- 
tees, to  enforce  the  payment  of  the  rent,  it  was  held  that  she  was  liable  to  the  ex- 
tent of  her  separate  estate.  Gaston  v.  Frankum,  2  De  G.  &  Sm.,  561.  When  a 
married  woman  undertakes  to  contract  by  means  of  a  power,  to  be  exercised  in 
a  particular  way,  and  she  does  not  observe  the  required  formalities,  the  instru- 
ment is  void  as  an  agreement,  and  specific  performance  cannot  be  decreed 
against  her.    Martin  v.  Mitchell,  2  J.  &  W.,  413,  434.    See  ante,  §  66,  note  2,  p.  93. 

A  contract  entered  into  by  a  lunatic,  during  a  lucid  interval,  is  binding.  Hall 
V.  Warren,  9  Ves.,  605.  As  to  proof  of  a  lucid  interval,  see  Atty.  Genl.  v.  Parn- 
ther,  3  Bro.  C.  C.,  441  ;  Holyland  ex  parte,  11  Ves.,  10;  Ray's  Med.  Juris.  Ch., 
14.  When,  after  a  person  has  contracted,  it  is  discovered  that  he  was  previously 
a  lunatic,  the  other  may  bring  a  suit  for  specific  performance,  and  obtain  an  issue 
to  ascertain  whether  the  defendant  was  a  lunatic  at  the  date  of  the  contract,  and 
if  so,  whether  he  had  lucid  intervals,  and  whether  the  contract  was  executed  dur- 
ing such  an  interval.  Hall  v.  Warren,  supra.  Or  the  plaintiff  may  ask,  in  the 
alternative,  to  have  the  contract  either  performed  or  discharged  ;  and  in  the  lat- 
ter case,  the  court  will  allow  him,  if  vendor,  to  retain  out  of  the  deposit  his  costs, 
charges,  and  expenses.  Frost  v.  Beavan,  17  Jur.,  369.  See  Neiil  v.  Morley,  9 
Ves.,  478.  In  determining  the  question  of  insanity,  a  court  of  equity  is  governed 
by  the  same  principles  as  a  court  of  law.  Bennet  v.  Vade,  2  Atk.,  327  ;  Osmond 
V.  Fitzroy,  3  P.  Wms.,  129.  The  subsequent  lunacy  of  a  party  to  a  contract 
does  not  affect  the  rights  of  the  other  party.     Owen  v.  Davies,  i  Ves.  Sen.,  82. 


§    125.  INABILITY    OF    DEFENDANT.  I61 

with  regard  to  such  relations,  and  oftener  arise  in  suits  to 
set  aside  the  transaction  than  in  proceedings  for  specific 
performance. 

§  125.  Inability  of  dcfeiidaiit. — If  it  be  out  of  the  power 
of  the  defendant  to  perform  the  agreement,  it  necessarily 
constitutes  a  sufficient  reason  why  the  court  should  refuse 
to  decree  specific  performance  ;  or,  in  other  words,  to  do 
what  would  be  nugatory.  This  is  so  obvious  as  scarcely  to 
require  any  illustration.'  Where,  in  a  suit  against  the  pro- 
visional committee  of  a  projected  railroad  company  for  the 
specific  performance  of  a  contract  to  deliver  to  the  plaintiff 
scrip  certificates,  it  was  not  alleged  that  the  defendants  had 
any  scrip  which  they  could  deliver,  but  there  was  an  aver- 
ment from  which  the  contrary  might  rather  be  inferred,  a 
demurrer  was  sustained  on  the  ground  that  the  bill  did  not 
show  that  the  defendants  were  able  to  fulfil'  The  result 
will  be  the  same,  notwithstanding  the  defendant  may  have 
been  in  a  situation  to  carry  out  the  contract  when  he  en- 
tered into  it,  but  afterward  deprived  himself  of  the  ability 
to  do  it  by  his  own  voluntary  and  wrongful  act.  If,  for 
instance.  A.,  after  entering  into  a  valid  agreement  to  sell 
and  convey  real  estate  to  B.,  should  convey  it  to  C,  who  is 
a  bona  fide  purchaser  for  a  valuable  consideration  without 
notice,  A.,  by  depriving  himself  of  the  power  to  fulfil  his 
agreement  with  B.,  also  deprives  B.  of  the  right  to  a  decree 
for  specific  performance.'     When,  however,  the  court  has 


1  Green  v.  Smith,  i  Atk.,  573;  Danforth  v.  Phila.,  etc.,  R.R.  Co.,  30  N.  J. 
Eq.,  12. 

2  Columbine  v.  Chichester,  2  Phila.,  27.  And  see  Hallett  v.  Middleton,  i 
Russ.,  243  ;  Ellis  v.  Colman,  4  Jur.  N.  S.,  350  ;  Phillips  v.  Stauch,  20  Mich., 
369- 

2  Denton  v.  Stewart,  i  Cox,  258;  Greenawav  v.  Adams,  12  Ves.,  395  ;  Smith 
V.  Kelley,  56  Me.,  64 ;  Gupton  v.  Gupton,  47  Mo.,  37.  When  the  vendor  of  land 
by  contract,  conveys  the  property  contracted  to  be  sold  to  a  third  person  in  such 
a  manner  that  the  land  cannot  be  reached,  the  court  will  not  entertain  a  bill  in 
equity  for  specific  performance  merely  for  the  purpose  of  compensating  the  pur- 
chaser in  damages,  but  will  leave  him  to  his  action  upon  the  agreement.  Some 
ground  of  equitable  interference  will  be  required  to  induce  a  court  of  equity  to 
grant  relief  in  such  a  case.  But  a  mere  contract  to  convey  the  land  to  a  third 
person  will  not  be  a  defence. 

II 


1 62  INCAPACITY    OF    PARTY.  §  I  26. 

properly  obtained  jurisdiction,  it  is  not  necessary,  as  will  be 
seen  hereafter,"  that  the  plaintiff  be  remanded  to  an  action 
at  law  simply  because  the  evidence  shows  that  the  defend- 
ant has  put  it  out  of  his  power  to  perform  the  contract,  but 
the  suit  may  be  retained  and  compensation  given  in  dam- 
ages.'' 

§  1 26.  Ability  acquired subseqtient  to  contract. — Although 
a  party,  when  he  entered  into  a  contract,  had  no  power  to 
fulfil,  yet  if  he  afterward  acquires  the  power,  he  is  bound  to 
perform  his  agreement.  Mr,  Fry,'  in  illustration  of  this 
principle,  mentions  the  following  case  decided  in  the  reign 
of  Charles  II.  During  the  civil  war,  the  then  Duke  of  New- 
castle being  abroad,  the  defendant,  who  was  his  heir  appar- 
ent, without  his  authority  sold  and  conveyed  to  the  plain- 
tiff certain  estates  of  the  duke,  and  received  and  used  the 
purchase  money  for  the  benefit  of  the  family.  The  de- 
fendant having  afterward  succeeded  to  the  dukedom  and 
the  estates  in  question,  as  heir,  he  was  held  bound  to  make 
good  the  sale,  which  was  decreed.'  And  if  the  defendant, 
though  he  have  not  the  present  ability  to  perform  the  con- 
tract, is  able  to  acquire  it,  he  will  be  compelled  to  do  so, 
and  to  carry  out  his  agreement."  Therefore,  when  a  bill 
for  specific  performance  is  filed  against  the  vendor,  he  can- 
not object  that  he  does  not  own  the  interest  he  has  con- 
tracted to  sell ;  as  he  will  not  be  permitted  to  say  that  he 
does  not  mean  to  obtain  such  interest'  So,  where  the  de- 
fendant, who  had  contracted  to  give  to  the  plaintiff  an  in- 
demnity secured  on  real  estate,  alleged  that  he  had  no  real 

'  Post,%  517. 

*  Renkin  v.  Hill,  49  Iowa,  270.  See  Stearns  v,  Beckham,  31  Gratt.,  379.  A 
vendee  will  not  lose  his  right  against  a  vendor  who  can  complete,  because,  from 
a  circumstance  ot  which  the  purchaser  had  no  knowledge,  he  has  no  right 
against  another  person  who  cannot  complete.  Where,  for  instance,  an  agree- 
ment is  entered  into  by  A.  and  B.  with  C,  and  it  afterward  appears  that  B.  had 
no  interest  in  the  property,  A.  may  nevertheless  be  compelled  to  convey  his  in- 
terest to  C.     Harrocks  v.  Rigby,  L.  R.  9,  Ch.  D.  180. 

*  Specif,  Perform.,  291. 

*  Clayton  v.  Duke  of  Newcastle,  2  Cas.  in  Ch.,  112. 

^  Carne  v.  Mitchell,  15  L.  J.  Ch.,  287.        °  Browne  v.  Warner,  14  Ves.,  412. 


§12;.       INABILITY  TO  OBTAIN  CONSENT  OF  ANOTHER.  1 63 

estate  of  sufficient  value,  and  insisted  that  the  plaintiff 
ought  to  accept  a  personal  indemnity,  it  was  held  that  the 
defendant  was  bound  to  purchase  real  estate  of  sufficient 
value/  If  a  person  agrees  to  convey  land  to  another  on  a 
certain  day  thereafter,  and  on  the  day  named  he  owns  the 
land,  the  agreement  is  binding  on  both  parties/  Contracts 
which  require  the  interposition  of  the  legislature  before 
they  can  be  carried  into  effect,  will  not  be  regarded  as  void.' 
An  agreement  for  the  sale  of  personal  property  not  at  the 
time  in  the  possession  of  the  seller,  is  vaHd,  and  may  be  en- 
forced, if  that  be  the  only  objection  to  a  decree  for  specific 
performance.* 

§  127.  Inability  to  obtain  conse7it  of  another. — When  a 
contract  is  entered  into  which  requires  the  consent  of  a 
third  person,  and  such  consent  cannot  be  obtained,  specific 
performance  will  not  be  decreed.^  If,  therefore,  the  wife's 
consent  is  necessary  to  the  performance  of  a  contract  entered 
into  by  the  husband,  or  husband  and  wife,  and  she  refuses 
to  give  it,  he  will  not  be  decreed  to  obtain  his  wife's  consent ;' 

^  Walker  v.  Barnes,  3  Mad.,  247.       '^  De  Medina  v.  Norman,  9  M.  &  W.,  820. 

3  Gt.  Western  R.R.  Co.  v.  Birmingham  &  Oxford  June.  R.R.  Co.,  2  Phil.,  597  ; 
Hawkes  v.  Eastern  Counties  R.R.  Co.,  i  De  G.  M.  &  G.,  756 ;  Devenish  v. 
Brown,  26  L.  J.  Ch.,  23  ;  Frederick  v.  Coxwell,  3  Y.  &  J.,  514 ;  Mayor  of  Nor- 
wich V.  Norfolk  R.R.  Co.,  4  Ell.  &  Bl.,  397. 

*  Hibblethwaite  v.  M'Morine,  5  M.  &  W.,  462.  The  contrary  seems  to  have 
been  decided  by  Lord  Macclesfield  in  Cuddee  v.  Rutter,  5  Vin.  Abr.,  538  ; 
PI.,  21. 

^  Howell  V.  George,  i  Mad.,  i ;  Grey  v.  Hesketh,  Ambl,  268.  And  see  Marsh 
V.  Milligan,  3  Jur.  N.  S.,  979;  Beeston  v.  Stutely,  Week.  Rep.,   1857-1858,  206. 

°  Bryan  v.  Wooley,  i  Bro.  P.  C,  184 ;  Emery  v.  Wase,  8  Ves.,  505  ;  Frederick 
V.  Coxwell,  3  Y.  &  J.,  514;  Martin  v.  Mitchell,  2  J.  &  W.,  413,  425  ;  Davis  v. 
Jones,  I  N.  R.,  269.  In  Iowa,  where  a  husband  agreed  to  convey  lands  in  which 
there  was  a  homestead  right  under  the  statute  regulating  "  homesteads,"  and 
the  wife  did  not  join  in  the  agreement,  it  was  held  that  specific  performance 
could  not  be  decreed,  the  wife  refusing  to  give  her  consent.  Yost  v.  Devault,  9 
Iowa,  60;  Barrett  v.  Mendenhall,  42  lb.,  296.  See  Long  v.  Brown,  66  Ind.,  160. 
Although  a  husband  will  not  be  decreed  to  procure  his  wife  to  join  in  the  execu- 
tion of  a  deed  for  the  purpose  of  releasing  her  inchoate  right  of  dower  if  she  is 
unwilling  to  do  so  ;  yet,  if  the  refusal  of  the  wife  is  made  in  bad  faith,  or  by  the 
procurement  of  her  husband  merely  to  enal)le  him  to  escape  his  just  obligations, 
the  court  may  decree  a  conveyance  by  the  husband  alone,  and  compel  him  to  give 
indemnity  by  mortgage  or  otherwise  against  the  claim  of  the  wife.  Peeler  v.. 
Levy,  26  N.  J.  Eq.,  330.  For  a  full  discussion  of  this  subject  and  citation  of 
cases,  see  post,  §511.  In  several  of  the  States  the  wife  may  now  enter  into  con- 
tracts in  relation  to  her  own  property,  without  the  consent  or  joinder  of  her  hus- 
band. 


164  INCAPACITY    OF    PARTY.  §   1 27. 

though  it  was  formerly  held  otherwise.'  Where,  however, 
a  father  covenanted  that  his  son,  who  was  then  under 
age,  should  convey  lands  to  a  purchaser,  he  was  decreed 
to  procure  the  son  to  convey,  on  the  son  coming  of  age.* 


'  Barrington  v.  Horn,  2  Eq.  Cas.  Abr.,  17,  PI.  7  ;  Hall  v.  Hardy,  3  P.  Wms., 
187  ;  Daniel  v.  Adams,  Ambl.,  495  ;  Morris  v.  Stephenson,  7  Ves.,  474.  "  The 
court  used  formerly  to  decree  the  husband  to  procure  his  wife's  consent,  and  in 
default,  commit  him  to  jail  until  she  yielded.  But  the  absurdity  of  such  a  course 
is  obvious  ;  because  the  court  of  chancery  would  be  putting  all  the  compulsion 
it  could  upon  the  wife  to  induce  her  to  do  an  act  of  which  the  essence  is  that  it 
is  done  without  compulsion.  The  court  of  chancery  would  be  distressing  her 
to  give  her  consent,  whilst  the  court  of  common  pleas  is  examining  her  to  see 
that  she  is  acting  from  free  will  alone ;  and  it  is  accordingly  now  established, 
that  the  court  will  not  interfere  specifically  to  perform  contracts  where  a  wife's 
consent  is  requisite,  and  she  refuses  to  give  it."  Fr)-  on  Specif.  Perform.,  293. 
In  Hall  V.  Hardy,  3  P.  Wms.,  187,  it  was  stated  by  Sir  Joseph  Jekyll,  Master  of 
the  Rolls,  that  there  had  been  a  hundred  precedents,  where,  if  the  husband  for 
a  v'aluable  consideration  covenants  that  the  wife  shall  join  with  him  in  a  fine, 
the  court  has  decreed  the  husband  to  do  it ;  for  that  he  had  undertaken  it,  and 
must  lie  by  it  Subsequently,  however,  the  doctrine  was  questioned,  and  in 
some  of  the  cases  denied.  Davis  v.  Jones,  4  Bos.  &  Pull.,  267  ;  Martin  v.  Mitch- 
ell, 2  Jac.  &  Walk.,  413.  In  Emery  v.  Wase,  8  Ves.,  505,  Lord  Eldon  said 
that  the  argument  showed  that  the  point  was  not  so  well  settled  as  it  had  been 
understood  to  be.  "  The  purchaser  is  bound  to  regard  the  policy  of  the  law  ; 
and  what  right  has  he  to  complain,  if  she,  who  according  to  law  cannot  part 
with  her  property,  but  by  her  own  free  will  expressed  at  the  time  of  that  act  of 
record,  takes  advantage  of  the  locus  poenitenticEr  And  see  i  Roper,  Husb.  & 
Wife,  545,  547-8,  tiote  ;  Bright's  Husb.  &  Wife,  191.  In  Watts  v.  Kenney,  3 
Leigh.,  272,  Tucker,  J.,  said :  "  As  to  compelling  a  husband  to  procure  a  con- 
veyance, the  doctrine,  never  well  received,  has  never  been  acted  on  with  us,  and 
seems  recently  to  have  been  discountenanced  in  England."  See  remarks  of  Sir 
Thomas  Plumer  in  Martin  v.  Mitchell,  2  J.  &  W.,  425  ;  and  see  Frederick  v, 
Coxwell,  supra.  In  England,  it  has  been  held  that  the  court  has  no  jurisdic- 
tion to  make  a  peremptory  order  that  a  married  woman  shall  execute  a  convey- 
ance pursuant  to  a  decree,  and  acknowledge  it.  Jordan  v.  Jones,  2  Phil.,  170. 
In  Pennsylvania,  where  a  married  woman  executed  a  deed  of  property  of  which 
she  held  the  legal  title  in  trust  by  descent,  and  the  law  required  her  to  acknowl- 
edge that  she  executed  it  voluntarily,  and  she  refused,  the  court  passed  a  decree 
compelling  her  to  do  so.  Dundas  v.  Biddle,  2  Pa.  St.,  160.  But  in  the  same 
State,  where  the  wife  died  before  her  conveyance  was  delivered,  it  was  held  that 
the  land  vested  in  her  heirs,  for  the  reason,  that  until  delivery,  she  might  revoke 
her  assent,  notwithstanding  she  had  acknowledged  the  deed.  Leland's  Appeal, 
13  Pa.  St.,  84.  Had  the  deed  been  delivered  in  her  lifetime  as  an  escrow,  a  dif- 
ferent case  would  have  been  presented.  It  was  a  matter  of  some  consequence 
to  the  heirs  ;  for  if  a  conveyance  had  been  decreed,  the  purchase  money  would 
have  gone  to  the  husband. 

Where  a  person  contracted  for  the  sale  of  a  lot  of  land,  described  as  the 
"buck  lot,"  and  his  wife  joined  in  the  contract,  but  did  not  acknowledge  it,  as 
required  by  the  statute,  and  a  deed  was  subsequently  given  duly  executed  by  the 
husband  and  wife,  of  a  lot  numbered  one  hundred  and  twenty-three,  the  num- 
ber of  the  "  buck  lot "  being  one  hundred  and  three,  it  was  held  that,  the  wife 
having  died  before  the  discovery  of  the  error  in  the  deed,  her  infant  heir  could 
not  be  compelled  to  convey  according  to  the  contract.  Knowles  v.  McCamley, 
10  Paige  Cfi.,  342. 

*  Anon,  2  Cha.  Cas.,  53. 


§   128.  SUBSTANTIAL    PERFORMANCE.  l6$ 

But   this   decision   would   not   now    be    regarded    as    au- 
thority/ 

§  128.  Substantial  pel' for  77iance. — Equity,  having  regard 
to  the  substance,  rather  than  to  the  form  of  contracts,  will 
not  allow  the  impossibility  of  a  literal  fulfilment  to  prevail 
as  a  defence,  when  the  agreement  can  be  substantially  car- 
ried out  so  as  to  effectuate  the  intentions  of  the  parties, 
and  do  entire  justice  between  them/  Thus,  where  a  man 
undertook  to  convey  certain  land,  and  there  was  no  such 
land,  the  court  compelled  him  to  convey  land  of  equal 
value/  The  following  case  was  decided  on  the  same  prin- 
ciple :  A  party  having  entered  into  an  agreement  to  build 
a  bridge  over  the  river  Tyne,  and  to  maintain  it  for  seven 
years,  for  the  sum  of  nine  thousand  pounds,  and  having 
given  a  bond  in  that  sum  for  the  performance  of  the  con- 
tract, it  was  found  that  a  bridge  on  that  site  could  not  be 
maintained.  He  thereupon  brought  a  suit  for  relief  from 
the  bond,  which  was  granted  upon  the  terms  of  his  build- 
ing a  bridge  upon  a  neighboring  site,  where  it  could  stand, 
and  submitting  to  an  issue  of  quanttim  damnijicatus  by  the 
change  of  site.*  A  bill  for  the  specific  performance  of  a 
contract,  alleged  that  the  defendants  agreed  to  procure, 
within  two  years,  the  heir  at  law  of  A.  B.  to  convey  certain 
property  to  the  plaintiffs,  or,  within  the  same  period,  to 
petition  the  House  of  Lords  for,  and  to  use  their  utmost 
endeavors  to  obtain,  an  act  of  Parliament  for  substituting  a 
trustee  in  place  of  the  heir,  in  case  such  heir  could  not  be 
found.     It  was  held,  that  although  an  agreement  by  a  per- 

'  Howell  V.  George,  i  Mad.,  4.     See  Evans  v,  Cogan,  2  P.  Wms.,  451. 

"Shaw  V.  Livermore,  2  Green,  Iowa,  338  ;  Philadelphia,  etc.,  R.R.  Co.  v.  Le- 
high, etc.,  Co.,  36  Pa.  St.,  204.  A  court  of  equity  will  aid  a  vendee  who  shows 
a  readiness  to  perform  substantially  his  agreement,  when  it  will  not  work  injury 
to  the  other  party.  Hart  v.  Brand,  i  A.  K.  Marsh,  159.  Where  a  purchaser 
of  land  stipulated  to  pay  the  taxes,  but  failed  to  do  so,  and  allowed  it  to  go  to 
sale,  he  bidding  it  off  himself,  it  was  held  a  sufficient  performance  if  no  inequi- 
table advantage  was  sought  or  intended  from  the  sale  ;  it  being  an  indirect 
mode  of  paying  the  taxes.     Oliver  v.  Crosswell,  42  111.,  41. 

'  Carey  v.  Stafford,  3  Swanst.,  427,  n. 

^Errington  v.  Aynesly,  2  Bro.  C.  C,  341.  See  Davis  v.  Hone,  2  Sch.  &  Lef., 
351.     Se.t  post,  Book  4,  Ch.  i. 


1 66  INCAPACITY    OF    PARTY.  §   I  29. 

son  to  use  his  utmost  endeavors,  could  not  be  enforced,  yet 
that  the  court  would  compel  the  defendants  to  permit  their 
names  to  be  used  in  an  application  to  Parliament  for  the  act." 
§  129,  Where  contract  invalid  in  form. — Within  the 
rule  under  consideration,  when  the  contract,  in  the  form  in 
which  it  is  drawn,  is  illegal,  the  court  will  enforce  it  in  sub- 
stance, if  it  can  be  lawfully  performed  in  this  way.  Thus, 
where  a  contract  providing  that  a  tenant  should  pay  the 
rent  charge  was  illegal  by  statute,  it  was  held  that  an  agree- 
ment for  a  lease  stipulating  that  the  tenant  should  pay  a  cer- 
tain sum  for  rent,  and  also  the  rent  charge,  might  be  en- 
forced by  means  of  a  lease  reserving  as  rent  the  two  sums 
which  in  the  agreement  were  treated  respectively  as  rent 
and  rent  charge."  And  the  court  will  be  likely  to  pursue  a 
similar  course  in  relation  to  a  contract  which,  though 
originally  lawful,  has  become  unlawful  in  part  by  subsequent 
legislation.  Accordingly,  where  a  dean  and  chapter,  pre- 
vious to  the  disabling  statute  of  13  Eliz.,  covenanted  for 
the  renewal  of  a  lease  for  ninety-nine  years,  and  a  suit  was 
brought  for  a  renewal  for  such  term  as  the  corporation 
could  grant  under  the  statute,  it  was  held  that  the  plaintiff 
was  entitled  to  the  relief  prayed.' 


'  Frederick  v.  Coxwell,  3  Y.  &  J.,  514.  A  railroad  company  agreed  with  A. 
for  the  sale  of  land  required  for  its  proposed  line,  he  to  withdraw  his  opposition, 
in  consideration  of  twenty  thousand  pounds  to  be  paid  to  him,  in  case  the  bill 
should  become  a  law.  There  being  a  rival  company  which  would  require  dif- 
ferent land  of  A.,  the  two  companies  agreed  while  the  matter  was  before  the 
committee  of  the  House  of  Commons,  that  there  should  be  a  reference  to  deter- 
mine which  of  the  two  lines  should  be  constructed,  and  that  the  successful  com- 
pany should  assume  all  the  engagements  of  the  other.  The  line  of  the  second 
company  having  been  approved,  and  a  bill  for  specific  performance  filed  by  A., 
the  defendant  demurred  on  the  ground  that  the  payment  of  the  twenty  thousand 
pounds  was  conditional  on  the  first-named  company  obtaining  the  passage  of  an 
act,  and  that  the  land  required  was  not  the  same  contracted  for,  but  the  demur- 
rer was  overruled.  Stanley  v.  Chester  &  Birkenhead  R.R.  Co.,  9  Sim.,  264;  S. 
C.  3,  My.  &  Cr.,  773.  In  a  subsequent  case,  however,  it  was  held  that  the  passing 
of  the  bill  of  an  amalgamated  company,  was  not  a  ground  for  enforcing  specific 
performance  of  an  agreement  which  was  to  be  binding  if  the  bill  of  one  of  the 
companies  passed.  Greenhalgh  v.  Manchester  &  Birmingham  R.R.  Co.,  9  Sim., 
416;  S.  C.  3,  My.  &  Cr.,  784,  affg.  the  decree,  but  on  a  different  ground.  See 
Earl  of  Lindsey  v.  Gt.  Northern  R.R.  Co.,  10  Hare,  664. 

*  Carolan  v.  Brabazon,  3  J.  &  L.,  200. 

*  Bettesworth  v.  Dean  and  Chapter  of  St.  Paul,  Sel.  Cas.  in  Ch.,  66. 


§§   130,    131.  INABILITY  TO  PERFORM.  167 

§  130.  Partial  disability, — Where  the  subject  matter  of 
the  contract  is  divisible,  and  the  disability  of  the  defendant 
relates  only  to  a  portion  of  it,  specific  performance  may  be 
decreed  as  to  that  which  is  capable  of  being  executed. 
Within  this  principle,  if,  under  a  contract  for  the  sale  of 
land,  the  vendor  has  no  title  to  a  portion  of  the  land,  the 
vendee  may  compel  specific  performance  of  the  contract,  so 
far  as  the  vendor  can  perform  it,  and  insist  upon  an  abate- 
ment of  the  price  as  to  the  residue/ 

§  131.  Inability  to  perform,  one  of  two  alternatives. — If 
a  contract  be,  on  the  face  of  it,  in  the  alternative,  so  as 
apparently  to  give  the  party  an  election,  and  one  of  the 
alternatives,  at  the  time  the  agreement  is  made,  is  impossible 
or  void,  the  right  of  election  does  not  exist,  and  the  party 
is  bound  to  perform  the  other  alternative/  Thus,  where  a 
bond  was  entered  into  for  the  payment  of  a  certain  sum, 
or  the  rendering  in  execution  of  a  person  who  had  pre- 
viously been  discharged,  it  was  held  that,  as  the  latter  al- 
ternative was  illegal  and  void,  the  obligor  must  perform  the 
other ;  and  that,  as  he  had  not  done  it,  the  bond  was  for- 
feited/ So,  where  an  award  directed  that  a  sum  of  money 
should  be  paid  or  secured,  but  did  not  state  what  security 
was  to  be  given,  and  a  question  arose  whether  the  award 
was  void  for  uncertainty,  it  was  held  that  it  was  not,  for 
the  reason  that  if  an  award  is  in  the  alternative,  and  one  of 
the  alternatives  is  void  or  impossible,  the  party  is  bound  to 
perform  the  other/     It  was  laid  down  in  an  early  case,  that 

^  Rankin  v.  Maxwell,  2  A.  K.  Marsh,  488  ;  Weatherford  v.  James,  2  Ala., 
170;  Jacobs  V.  Sale,  2  Ired.  Eq.,  286;  Henry  v.  Liles,  lb.,  407;  Wright  v. 
Young,  6  Wis.,  127;  Collins  v.  Smith,  i  Head.  Tenn.,  251  ;  Bell  v.  Thompson, 
34  Ala.,  633 ;  Ketchum  v.  Stout,  20  Ohio,  453  ;  Covell  v.  Cole,  16  Mich.,  223  ; 
Marshall  V.  Caldwell,  41  Cal.,  611;  post,  §505.  Where  several  joint  owners 
contracted  with  a  person  for  the  sale  of  land,  and  the  purchaser  brought  a  suit 
for  specific  performance  against  all  of  them,  in  which  he  failed  to  establish  his 
claim  to  the  whole  of  the  land  because  the  contract  was  not  binding  upon  some 
of  the  owners,  it  was  held  that  he  was  entitled  to  recover  such  portion  of  the 
land  as  was  owned  by  those  upon  whom  the  contract  was  binding.  Meek  v. 
Walthall,  20  Ark.,  648. 

"  Wigley  V  Blacwal,  Cro.  Eliz.,  780.  ^  Da  Costa  v.  Davis,  i  B.  &  P.,  242. 

*  Simmonds  v.  Swaine,  i  Taunt.,  549. 


1 68  INCAPACITY    OF    PARTY.  §   IS^^- 

"  Where  the  condition  of  a  bond  consists  of  two  parts  in 
the  disjunctive,  and  both  are  possible  at  the  time  of  the 
bond  made,  and  afterward  one  of  them  becomes  impossi- 
ble by  the  act  of  God,  the  obligor  is  not  bound  to  perform 
the  other  part.'"  This  staterrient  of  the  principle  is  not, 
however,  quite  correct.  For,  although  the  thing  agreed 
to  be  done  cannot  be  literally  carried  out,  in  consequence 
of  the  death  of  a  party,  yet  if  it  can  be  performed  in  sub- 
stance, and  that  is  consonant  with  the  intention  of  the  par- 
ties, it  may  be  enforced.  Thus,  a  father  having  agreed,  on 
the  marriage  of  his  daughter,  to  leave  to  her,  at  his  death, 
an  equal  portion  with  his  other  children,  and  the  daughter 
having  died  in  his  lifetime,  it  was  urged  that  he  was  there- 
by discharged  from  the  agreement  by  act  of  God.  But  a 
demurrer  to  a  bill  by  the  husband,  praying  for  an  equal 
share  in  the  father's  residuary  estate,  was  overruled;  the 
vice-chancellor  remarking  that  the  agreement  might  have 
been  performed  in  either  of  two  ways  :  by  the  father  mak- 
ing provision  for  his  daughter  by  will,  or  by  his  dying  in- 
testate ;  and  that  though  the  death  of  the  daughter  pre- 
vented him  from  performing  it  in  the  first  way,  he  was  not 
thereby  released  from  performing  it  in  the  second.'    Where 

1  Laughter's  Case,  5  Co.  Rep.,  21  B.  ;  S.  C.  Eaton's  Case,  Moore,  357 ;  Eaton 
V.  Laughter,  Cro.  Eliz.,  398.  See  Warner  v.  White,  T.  Jon.,  95.  A  father,  on 
the  marriage  of  his  daughter,  covenanted  that  by  some  act  mier  vivos,  or  by 
will,  he  would  make  provision  for  his  daughter.  Nothing,  however,  was  done 
by  the  covenantor  for  his  daughter,  who  died  in  his  lifetime.  The  court  of  com- 
mon pleas,  on  a  case  stated  for  its  opinion  by  direction  of  Vice-Chancellor  Wigram, 
held  that  the  covenantee  had  no  cause  of  action.  "  The  vice-chancellor,  though 
expressing  an  opinion  that  by  this  view  the  intention  of  the  parties  was  disap- 
pointed, as  the  provision  was  intended  to  be  absolute,  and  the  mode  of  making 
it  only  intended  to  be  left  to  the  discretion  of  the  covenantor,  yet  confirmed  the 
certificate,  and  dismissed  the  bill  with  costs."  Jones  v.  How,  7  Hare,  267  ;  9 
C.  B.,  I  ;  Fry  on  Specif.  Perform.,  299,  300. 

2  Barkworth  v.  Young,  4  Drew,  i.  In  this  case,  the  vice-chancellor  said  that 
it  was  impossible  to  lay  down  any  universal  proposition,  and  that  each  case  must 
depend  upon  the  intention  of  the  parties  ;  but  that  where  the  intention  was  clear 
that  one  of  the  parties  should  do  a  certain  thing,  and  he  had  an  option  to  do  it 
in  one  or  other  of  two  modes,  and  one  of  those  modes  became  impossible  by  the 
act  of  God,  he  was  bound  to  perform  it  in  the  other  mode ;  and  that  in  the  case 
before  the  court,  it  was  manifestly  the  intention  of  the  parties  that,  in  one  way 
or  other,  the  daughter  should  have  an  equal  share  of  the  testator's  property.  A 
similar  view  has  been  taken  in  actions  at  law.  In  Studholmes  v.  Mandell,  i  Ld. 
Raym.,  279;  Tr«by,  C.  J.,  referred  to  a  decision  where  a  person  entered  into  a 


§131.  INABILITY    TO    PERFORM.  1 69 

the  party  seeking  specific  performance  has,  by  his  own  act 
or  default,  rendered  the  performance  of  one  of  the  alterna- 
tives impossible,  thereby  depriving  the  defendant  of  his 
right  of  election,  and  in  effect  nullifying  the  agreement, 
the  other  alternative  is  discharged.'  This  obviously  just 
principle  is  acted  on  at  law,  as  well  as  in  equity.  Thus,  in 
debt  on  a  bond  conditioned  for  the  delivery  up,  by  the  de- 
fendant to  the  plaintiff,  of  certain  obligations  entered  into 
by  the  plaintiff  to  the  defendant,  or  for  the  execution  to 
the  plaintiff  of  such  release  of  them  as  should  be  devised  by 
the  plaintiff's  counsel  before  Michaelmas,  a  plea  that  neither 
the  plaintiff  nor  his  counsel  devised  any  release  before 
Michaelmas,  was  sustained  by  the  Queen's  Bench,  on  the 
ground  that  when  the  obligee  deprives  the  obligor  of  the 
power  to  perform  one  part,  the  law  discharges  him  from  the 
other.'  If  one  of  two  alternatives  cannot  be  performed 
solely  in  consequence  of  the  act  of  a  stranger,  the  other 
alternative  must  be  performed  :  as  if  a  person  should  give 
a  bond  to  convey  certain  land  to  another,  or  to  marry  A. 
B.  by  a  day  named,  and  a  stranger  married  A.  B.  before  the 
day,  the  obligor  must  convey  the  land  ;  but  not  if  the  obli- 
gee married  A.  B.  before  the  day,  for  then  the  other  alterna- 
tive is  discharged.' 

bond  either  to  make  a  lease  for  the  life  of  the  obligee  before  a  certain  day,  or  to 
pay  one  hundred  pounds,  and  the  obligee  having  died  before  the  day,  the  court 
of  common  pleas  held  that  the  obligor  should  pay  the  one  hundred  pounds.  In 
another  case,  in  an  action  on  a  bond  conditioned  to  pay  or  to  secure  to  the  plain- 
tiff, or  her  children  by  William  Ashe,  her  then  intended  husband,  three  thou- 
sand pounds  within  six  months  after  the  defendant  should  become  Duke  of  Bol- 
ton, it  was  set  up  in  defence,  that  William  Ashe  died  childless,  before  the  de- 
fendant became  duke.  But  the  plea  was  held  bad,  on  the  ground  that  it  could 
never  have  been  the  intention  of  the  parties  that  the  money  should  not  be  paid 
to  the  plaintiff  in  case  she  should  not  have  a  child  by  William  Ashe  at  the  time 
the  defendant  became  duke ;  though  if  she  then  had  a  child,  the  defendant 
might  have  elected  to  whom  to  pay  the  money.  Drummond  v.  Duke  of  Bol- 
ton, Say.,  243.     And  see  More  v.  Morecomb,  Cro.  Eliz.,  864. 

•  Com.  Dig.  Condition,  K.  I. 

'^  Grenningham  v.  Ewer,  Cro.  Eliz.,  539.  ^Ibid. 


CHAPTER   II. 

NON-CONCLUSION    OF    CONTRACT. 

132.  Existence  of  contract  an  important  subject  of  inquiry. 

133.  What  essential  to  constitute  a  contract. 

134.  No  liability  incurred  by  mere  proposition. 

135.  Requisites  of  acceptance. 

136.  Where  acceptance  changes  terms  of  offer. 

137.  When  offer  and  acceptance  amount  to  agreement. 

138.  At  what  time  agreement  is  complete. 

139.  Effect  of  representation  influencing  conduct  of  party. 

140.  Promise  to  entitle  party  to  relief  must  have  been  positive. 

§  132.  Existence  of  contract  essential. — The  defendant 
may  insist  that  no  definite  and  binding  terms  were  arrived 
at  by  the  parties,  but  that  what  transpired  between  them 
amounted  to  nothing  final.  This  position,  if  sustained,  will, 
of  course,  be  fatal  to  the  relief  prayed.  For  if  there  has  not 
been  a  reciprocal  and  mutual  assent  to  what  is  sought  to  be 
enforced,  the  plaintiff  can  have  no  claim  upon  the  interpo- 
sition of  the  court.  It  therefore  becomes  a  subject  of  in- 
quiry, where  the  absence  of  any  agreement  is  set  up  in 
defence,  w^hether  what  has  transpired  amounts  to  a  contract, 
or  only  to  a  negotiation  looking  to  that  end,  but  not  result- 
ing in  anything  determinate.  When  the  arrangement  is 
reduced  to  a  formal  written  instrument,  which  is  signed  by 
the  parties,  no  difficulty  can  arise  in  judging  of  its  character. 
But  it  may  be  otherwise,  when  the  alleged  agreement  is 
sought  to  be  derived  from  conversations  or  letters.'  Unless 
it  is  entirely  clear  that  a  contract  was  concluded,  specific 

'  "  Care  should  be  taken  not  to  construe  as  an  agreement,  letters  which  the 
parties  intended  only  as  a  preliminary  negotiation.  The  question  in  such  cases 
always  is,  Did  they  mean  to  contract  by  their  correspondence,  or  were  they  only 
settling  the  terms  of  an  agreement  into  which  they  proposed  to  enter  after  all  its 
particulars  were  adjusted,  which  was  then  to  be  formally  drawn  up,  and  by  which 
alone  they  designed  to  be  bound  ?  "  Foster,  J.,  in  Lyman  v.  Robinson,  14  Allen, 
254.     And  see  Brown  v.  N.  Y.  Centr.  R.R.  Co.,  44  N.  Y.,  79. 


§    133.  AN    OFFER    AND    AN    AGREEMENT.  I7I 

performance  will  not  be  decreed ;  but  the  court  will  leave 
the  parties  to  their  rights  at  law.' 

§  133.  Distinctioji  between  ari  offer  and  an  agreement. — 
The  principles  governing  this  subject  are  extremely  simple  ; 
the  only  question  being,  whether,  at  the  time  of  the  alleged 
agreement,  the  minds  of  the  parties  had  come  together  in 
actual  assent.  A  contract  capable  of  being  specifically  en- 
forced, may  b^  made  by  a  proposition,  either  verbal  or 
written,  on  the  part  of  one  person,  and  the  acceptance  of  it 
by  the  one  to  whom  it  is  made ;  but  not  by  an  acceptance 
by  a  third  person  to  whom  the  offer  was  not  made.''  It  is 
scarcely  necessary  to  say  that  there  is  an  important  distinc- 
tion between  a  memorandum  of  offer,  which  is  the  act  of 
only  one  party,  and  a  memorandum  of  agreement,  which  is 
the  act  of  both.  "In  the  case  of  an  offer,  the  party  signing 
it  may  at  any  time  before  acceptance  retract.  But  if 
it  be  an  agreement,  though  signed  by  one  party  alone,  he 
cannot  retract  at  his  pleasure ;  but  all  he  can  do  is  to  call 
upon  the  other  party  to  sign  or  rescind  the  agreement.  A 
memorandum  of  agreement  supposes  that  the  two  parties 
have  verbally  made  an  actual  contract  with  each  other ; 
and  when  the  terms  of  such  contract  are  reduced  to  writing 
and  signed,  that  is  sufficient  to  bind  the  party  signing.  But 
in  the  memorandum  of  an  offer  only,  that  assumes  that 
there  has  been  no  actual  contract  between  the  parties.'" 

1  Huddleston  v.  Briscoe,  11  Ves.,  583 ;  Stratford  v.  Bosworth,  2  V.  &  B.,  341. 
Where  a  party  agreed  to  accept  the  lease  of  a  dwelling-house  in  London  "  to 
contain  all  usual  covenants  and  provisoes,"  and  the  lease  contained  a  covenant 
not  to  assign  without  the  lessor's  consent,  it  was  held  that  it  was  not  a  "  usual 
covenant,"  and  that  the  agreement  could  not  be  enforced.  Hampshire  v.  Wickens, 
L.  R.  7,  Ch.  D.  555,  disapproving  Haines  v.  Burnett,  27  Beav.,  500.  As  an  agree- 
ment can  only  be  constituted  by  the  act  of  parties  intending  and  consenting  to 
contract,  an  arrangement  which,  though  apparently  formal  and  complete,  is  under- 
stood by  the  parties  as  a  mere  jest,  is  not  binding.  The  term  agreement  is  usually 
employed  in  a  more  restricted  sense  than  contract ;  the  latter  comprising  every 
species  of  obligation  whereby  a  person  binds  himself  to  do,  or  omit  to  do,  some 
act,  while  the  former  is  seldom  used  except  in  relation  to  contracts  not  under 
seal,  and  imports  a  reciprocity  of  obligation.  This  distinction  is,  however,  practi- 
cally unimportant.  See  Wain  v.  Warlters,  5  East.,  16  ;  Saunders  v.  Wakefield,  4 
B.  &  Aid.,  595  ;  Egerton  v.  Mathews,  6  East.,  308. 

''Meynell  v.  Surtees,  3  Sm.  &  Gif.,  loi,  117. 

^  Kindersley  v.  C.  in  Warner  v.  Willington,  3  Drew,  523.  And  see  Horsfall  v. 
Garnett,  W^eek.  R.,  1857-1858,  387.   When  instructions  are  given  to  a  real  estate 


172  NON-CONCLUSION    OF    CONTRACT.  §   1 34. 

§  1 34.  Right  to  withdraw  offer. — A  party  incurs  no  re- 
sponsibility by  a  mere  proposition  which  is  not  accepted ; 
an  offer  in  itself  creating  no  mutuality  and  no  ol)ligation.' 
The  proposal  may  be  withdrawn  by  the  person  making  it, 
either  expressly  by  a  formal  notice,  or  impliedly  by  some 
act  inconsistent  with  it,  without  alleging  any  reason  ;  or  it 
may  be  terminated  by  the  party  to  whom  it  is  made  declin- 
ing it,  or  delaying  for  an  unreasonable  time  to  return  a  defi- 
nite answer.  Where  a  person  makes  an  offer  for  the  pur- 
chase of  land,  which  the  owner  of  the  land  intends  to 
accept,  but  does  not  do  it,  and  the  proposal  is  withdrawn, 
there  is  no  contract."  The  offer  may  be  withdrawn  at  any 
time  before  acceptance,  notwithstanding  it  specifies  a  defi- 
nite period  within  which  the  other  party  may  reply.' 
When  the  person  to  whom  the  proposition  is  made  de- 
clines it,  it  will  not  be  revived  by  a  subsequent  offer  of 
acceptance  ;  such  an  act  depriving  the  party  of  the  right  to 
avail  himself  of  the  original  offer.'  But  either  party,  until 
withdrawal  or  acceptance,  may,  of  course,  vary  or  add  to. 
the  proposed  stipulations.  W^here  the  owner  of  an  estate 
in  an  offer  of  sale  proposed,  among  other  conditions,  the 
payment  of  fifteen  hundred  pounds  by  way  of  deposit,  to 

agent  to  find  a  purchaser  of  land,  and  he  is  not  instructed  as  to  the  conditions 
to  be  inserted  in  the  contract,  he  is  not  authorized  to  sign  a  contract.  Hamer 
V.  Sharp,  L.  R.  19,  Eq.  108. 

'  Thornbury  v.  Bevill,  i  Y.  &  C.  C.  C,  554  ;  Tuct:er  v.  Wood,  12  Johns.,  170  ; 
Bower  v.  Blessing,  i  Serg.  &  Rawle,  243  ;  Canal  Co.  v.  R.R.  Co.,  4  Gill  &  Johns., 
I.  Pothier  says :  "  A  contract  includes  a  concurrence  of  intention  in  two  parties, 
one  of  whom  promises  something  to  the  other,  who,  on  his  part,  accepts  such 

promise Now,  as  I  cannot  by  the  mere  act  of  my  own  mind  transfer  to 

another  a  right  in  my  goods  without  a  concurrent  intention  on  his  part  to  accept 
them,  neither  can  I  by  my  promise  confer  a  right  against  my  person  until  the 
person  to  whom  the  promise  is  made  has,  by  his  acceptance  of  it,  concurred  in 
the  intention  of  acquiring  such  right."  Poth.  on  Ob.  Pt.  i,  C.  i,  S.  i.  Art.  2. 
See  Johnston  v.  Fessler,  7  Watts,  48  ;  Eskridge  v.  Glover,  5  Stew.  &  Port.,  264 ; 
McKinley  v.  Watkins,  13  111.,  140  ;  Cope  v.  Albinson,  16  Eng.  L.  &  Eq.,  476. 

-  Warner  v.  Willington,  supra. 

'  Routledge  v.  Grant,  4  Bing.,  653  ;  Cooke  v.  Oxley,  3  T.  R.,  653  ;  Larmon  v. 
Jordan,  56  III,  204  ;  Mayer  v.  U.  S.,  5  Ct.  of  CL,  317  ;  Boston  &  Maine  R.R.  v. 
Bartlett,  3  Cush.,  224. 

■"  Hyde  v.  Wrench,  3  Beav.,  334.  Contra,  Hodgson  v.  Hutchinson,  5  Vin. 
Abr.,  522,  PI.  34.  A  refusal  to  accept  need  not  be  proved  ;  it  is  sufficient  that 
there  is  no  evidence  of  acceptance.     Corning  v.  Colt,  5  Wend.,  253. 


§135-  WHAT  REQUIRED  TO  CONSTITUTE  AN  ACCEPTANCE.    1 73 

which  the  other  party  objected,  and  the  owner  then  re- 
quired that  the  agreement  should  be  signed  before  a  day 
named,  which  was  not  done,  but  an  offer  was  subsequently 
made  to  sign  the  agreement  and  pay  the  deposit,  it  was 
held  that  there  was  no  contract/  It  may  be  denied  that 
the  alleged  offer  was  really  made.  Where  a  person  writes 
to  the  owner  of  land  inquiring  the  price,  the  reply  of  the 
latter  stating  the  price  does  not  constitute  a  proposition  to 
sell.'  So,  the  construction  of  the  offer  may  be  the  subject 
of  controversy  on  the  question  of  the  conclusion  or  non- 
conclusion  of  a  contract.' 

§  1 35.  What  reqitiredto  constitute  an  acceptajice. — If  there 
is  a  simple  acceptance  of  an  offer  to  purchase  accompanied  by 
a  statement  that  the  acceptor  desires  that  the  arrangement 
should  be  put  into  some  formal  terms,  the  mere  reference  to 
such  a  proposal  will  not  prevent  the  court  from  enforcing  the 
final  agreement  so  arrived  at.'  The  plaintiff  wrote  to  the 
defendant's  agent:  "  In  reference  to  J.'s  property  on  Fleet 
Street,  I  think  eight  hundred  pounds  for  the  lease,  fixtures, 


^  Honeyman  v.  Marryat,  21  Beav.,  14  ;  Affd.  6,  House  of  Lds.,  112. 

"^  Knight  V.  Cooley,  34  Iowa,  218.     See  Erwin  v.  Envin,  25  Ala.,  236. 

'  In  a  suit  for  specific  performance,  the  averments  in  the  petition  were,  that  the 
plaintiff,  a  married  woman,  occupying  certain  premises  belonging  to  the  defend- 
ant, made  a  written  proposition  to  him  to  purchase  the  same,  and  to  pay  defend- 
ant's agent  twenty-five  hundred  dollars  therefor — fifteen  hundred  dollars  to  be 
paid  in  cash  and  the  remaining  one  thousand  dollars  in  one  year,  to  be  secured 
by  a  mortgage  on  the  premises.  The  defendant  replied  that  he  would  sell  the 
property  for  three  thousand  dollars — fifteen  hundred  dollars  to  be  paid  to  his 
agent  immediately,  and  the  balance  to  be  paid  in  two  yearly  instalments  of  seven 
hundred  and  fifty  dollars  each,  with  a  mortgage  on  the  premises  to  secure  such 
payments  ;  and  that,  if  she  accepted  his  offer,  to  inform  him  of  the  fact  and  he 
would  send  a  deed  or  power  of  attorney  to  his  agent,  and  authorize  him  to  ar- 
range the  whole  affair.  The  plaintiff  at  once  wrote  back  that  she  accepted  the 
defendant's  terms,  and  that  she  would  pay  to  his  agent  the  fifteen  hundred  dol- 
lars as  soon  as  the  deed  was  ready,  and  at  the  same  time  execute  the  mortgage. 
Held,  overruling  a  demurrer  to  the  petition,  that  the  word  "  immediately  "  in  the 
defendant's  proposition  simply  meant  that  the  first  payment  should  be  cash,  to 
be  made  at  the  time  the  deed  was  delivered  and  mortgage  executed.  Bruner  v. 
Wheaton,  46  Mo.,  363. 

^Crossley  v.  Maycock,  L.  R.  18,  Eq.  180.  Where  the  plaintiff  stipulated  in 
writing  to  take  from  the  defendant  the  lease  of  a  house  for  a  term  mentioned  at 
a  specified  rent,  "  subject  to  the  preparation  and  approval  of  a  formal  contract," 
it  was  held  that,  in  the  absence  of  any  other  contract,  there  was  no  final  agree- 
ment of  which  specific  performance  could  be  decreed.  Winn  v.  Bull,  L.  R.  7, 
Ch.  D.  29. 


174  NON-CONCLUSION    OF    CONTRACT.  §   I35. 

etc.,  is  about  what  I  should  be  willing  to  give.  Possession 
to  be  given  me  within  fourteen  days  from  date.  This  offer  is 
made  subject  to  the  conditions  of  the  lease  being  modified  to 
my  solicitor's  satisfaction."  Soon  afterward  the  agent  wrote 
in  reply :  "  We  are  instructed  to  accept  your  offer  of  eight 
hundred  pounds  for  these  premises,  and  have  asked  J.'s 
solicitor  to  prepare  a  contract."  The  modification  required 
in  the  lease  was  obtained.  It  was  held  that  the  mere  refer- 
ence to  the  preparation  of  an  agreement,  by  which  the  terms 
agreed  upon  would  be  put  into  a  more  formal  shape,  did 
not  prevent  the  two  letters  from  constituting  a  complete 
contract'  But  an  acceptance  to  be  binding  must  be  dis- 
tinct, unconditional,  and  not  vary  the  terms  of  the  offer, 
and  be  communicated  to  the  other  party  without  unreason- 
able delay."  A  moment's  reflection  will  show  that  these 
requirements  are  reasonable,  just,  and  fundamental.  An  am- 
biguous answer  might  be  susceptible  of  different  interpreta- 
tions, and  require  explanation,  thereby  leaving  the  negotia- 
tion open  instead  of  terminating  it ;  and  an  acceptance  with 
a  qualification  or  condition  would  require  the  assent  of  the 
party  making  the  offer.  So  the  offer  must  be  acted  on 
promptly,  if  at  all,  that  being  implied  from  the  nature  of  the 
transaction.'    Where  it  appeared  that  although  there  had 

'  Bonnevvell  v.  Jenkins,  L.  R.  8,  Ch.  D.  70.  A.  wrote  to  B.,  offering  to  sell 
him  property  for  thirty-seven  thousand  five  hundred  pounds,  or  a  part  of  it  tor 
less,  and  added  a  postscript  reserving  the  right  to  remove  the  materials  of  a 
house.  B.  replied  :  "  I  beg  to  acknowledge  the  receipt  of  your  letter  stating  that 
you  are  willing  to  accept  thirty-seven  thousand  five  hundred  pounds  for  your 
land  at  N.  1  hereby  accept  your  terms  as  above,  and  agree  to  pay  you  the  said 
sum  of  thirty-seven  thousand  five  hundred  pounds  for  your  land."  It  was  held 
that  this  was  an  acceptance  of  the  terms  of  A.'s  letter,  including  the  postscript. 
Hussey  v.  Hornepayne,  L.  R.  8,  Ch.  D.  670. 

■'  Thornbury  v.  Bevill,  i  Y.  &  C.  C.  C,  554  ;  Eads  v.  Carandolet,  42  Mo.,  113  ; 
Bruner  v.  Wheaton,  supra;  Bethel  v.  Hawkins,  21  La.  An.,  620;  Wilson  v. 
Clements,  3  Mass.,  i  ;  Peru  v.  Turner,  10  Me.,  185  ;  Johnston  v.  Fessler,  7  Watts, 
48;  Hazard  v.  New  England  Mar.  Ins.  Co.,  i  Sumner,  218;  Carr  v.  Duvall,  14 
Pet.,  'J^ ;  Hartford  &  New  Haven  R.R.  Co.  v.  Jackson,  24  Conn.,  514  ;  Solomon 
V.  Webster,  4  Colorado,  353 ;  Carter  v.  Shorter,  57  Ala.,  253. 

'  "  When  I  offer  anything  to  a  person,  what  I  mean  is,  I  will  do  that,  if  you 
choose  lo  assent  to  it  ;  meaning,  although  it  is  not  so  expressed,  if  you  choose  to 
assent  to  it  in  a  reasonable  time."  Lord  Cranworth  in  Meynell  v.  Surtees,  i  Jur. 
N.  S.,  737.  In  1827  the  defendant  wrote  to  the  plaintiff"  that  he  had  credited  the 
account  of  the  latter  with  two  hundred  and  twenty  pounds,  in  consideration  of 


§135-  WHAT  REQUIRED  TO  CONSTITUTE  AN  ACCEPTANCE.    1 75 

been  a  long  correspondence  between  the  parties,  yet  that 
there  had  never  been  in  any  part  of  it  a  distinct  acquiescence 
on  both  sides  in  one  and  the  same  set  of  terms,  it  was  de- 
creed that  the  bill  should  be  dismissed  unless  the  plaintiff 
accepted  the  terms  of  the  defendant's  original  offer,  which 
w^as  done.'  A.  wrote  to  B.  offering  to  sell  him  certain  land. 
B.  brought  a  suit  against  A.,  alleging  an  agreement  in 
writing  for  the  sale  of  the  land,  and  A.,  in  his  answer, 
offered  to  sell  the  land.  The  decree  was  in  the  alternative, 
for  a  conveyance  on  the  payment  of  the  purchase  money 
into  the  bank,  or,  in  default,  that  the  bill  be  dismissed.  The 
money  having  been  paid,  a  question  arose  between  the  heirs 
and  devisees  of  B.  as  to  the  time  the  contract  was  con- 
cluded. It  was  held  that  the  bill  did  not  constitute  an  ac- 
ceptance so  as  to  bind  B.,  as  he  might  have  dismissed  the 
bill ;  that  the  decree  did  not,  for  it  left  an  election  to  the 
plaintiff  ;  but  that  the  payment  of  the  money  into  the  bank 
did,  that  being  unequivocal.'  A.  having  made  a  proposition 
to  B.  to  take  the  lease  of  a  farm,  and  having  given  B.  the 
names  of  certain  persons  as  references,  the  agents  of  B.,  by 
his  direction,  prepared  and  sent  to  A.  a  lease  which  they 
regarded  as  conforming  to  A.'s  offer.  It  was  held  that  this 
did  not  constitute  an  acceptance,  for  the  reason  that  the 
act  was  ambiguous  and  conditional ;  ambiguous,  because 
the  lease  might  have  been  forwarded  to  save  time,  and  with- 
out any  intention  to  relinquish  the  right  to  accept  or  reject 
A.'s  offer ;  and  conditional,  because  the  sending  of  the  draft 


an  agreement  by  the  plaintiff  to  convey  certain  houses.  The  abstract  was  de- 
livered ;  but  there  was  no  acceptance  in  writing  by  the  plaintiff,  who,  however, 
five  years  subsequently  brought  a  suit  for  specific  performance.  It  appeared  that 
in  1827  the  defendant  had  broken  off  the  negotiation,  and  that,  two  years  later, 
both  parties  regarded  it  as  abandoned ;  but  that  the  plaintiff  had,  in  the  mean- 
time, had  the  benefit  of  the  credit  of  two  hundred  and  twenty  pounds.  The  bill 
was  dismissed,  on  the  ground  that  an  offer  to  convert  the  negotiation  into  a  con- 
tract must  be  acted  on  within  a  reasonable  time.  Williams  v.  Williams,  17  Beav., 
213. 

'  Thomas  v.  Blackman,  i  Coll.  C.  C,  301.  See  Crane  v.  Roberts,  5  Me.,  419  ; 
Eliason  v.  Henshaw,  4  Wheat.,  225  ;  Glaymaker  v.  Sawin,  4  lb.,  369. 

^  Gaskarth  v.  Lord  Lowther,  12  Ves.,  107  ;  Fry  on  Specif  Perform.,  76,  77. 


176  NON-CONCLUSION    OF    CONTJIACT.  §   1 36. 

lease,  if  an  acceptance,  was  upon  condition  that  the  defend- 
ant accepted  the  draft  lease." 

§  136.  Acceptance  with  qualificatioiu — A  few  examples 
will  suffice  to  illustrate  the  very  obvious  proposition,  that 
when  the  acceptance  changes  the  terms  of  the  offer,  there 
is  no  contract :  as  where  A.  offered  to  purchase  of  B.  the 
lease  of  a  house,  possession  to  be  given  on  or  before  the 
twenty-fifth  of  July,  and  a  definite  answer  within  six  weeks, 
and  B.  replied  that  he  would  sell  on  the  terms  proposed, 
and  give  possession  on  the  first  of  August,  and  A.  after- 
ward, and  before  the  six  weeks  had  expired,  retracted  his 
offer ;'  or  where  the  owner  of  land  made  the  promoters  of 
a  railroad  an  offer  for  a  right  of  w^ay  for  mineral  traffic  only, 
which  was  accepted  for  the  purpose  of  constructing  a  rail- 
road for  general  traffic  ;'  or  where  the  defendant  made  a 
proposition  for  a  lease,  and  the  plaintiff  accepted  the  terms 
proposed,  but  offered  an  under-lease/  So,  when  a  condi- 
tion is  introduced  in  the  acceptance,  the  proposed  agree- 
ment is  still  in  abeyance/  In  a  suit  for  the  specific  per- 
formance of  a  contract  for  the  sale  of  land,  it  appeared  that 
the  defendants  had  written  to  the  plaintiffs,  offering  to 
purchase,  to  which  the  plaintiffs  repHed  as  follows:  "We 
are  in  receipt  of  your  note  offering  two  pounds  per  yard  for 
the  plot  of  land,  which  offer  we  accept,  and  now  hand  you 
two  copies  of  conditions  of  sale,  which  we  have  signed. 
We  will  thank  you  to  sign  same,  and  return  one  of  the 
copies  to  us."  The  conditions  of  sale  here  referred  to  wxre 
very  special.  It  was  held  that  there  was  no  final  contract.' 
A.  sent  by  telegram  to  B.  an  offer  of  twelve  hundred  pounds 
for  the  purchase  of  certain  real  estate.  B.  telegiaphed  back  : 
"  Accept  your  offer  of  twelve  hundred  pounds  subject  to 

1  Warner  v.  Willington,  3  Drew,  523.     And  see  Horsfall  v.  Garnett,  Week. 
R.,  1857-1858,  387. 

*  Routledge  v.  Grant,  4  Bing.,  653. 

'  Meynell  v.  Surtees,  3  Sm.  &  Gif.,  loi,  affd.  i,  Jur.  N.  S.,  737. 

"  Holland  v.  Eyre,  2  Sim.  &  Stu.,  194.  ^  Hall  v.  Hall,  12  Beav.,  414. 

*  Crossley  v.  Maycock,  L.  R.  18,  Eq.  180. 


§   136.  ACCEPTANCE    WITH    QUALIFICATION.  I// 

letter  and  agreement,  to  be  sent  to  your  solicitor."  A  draft 
contract  of  sale  was  afterward  furnished  to  the  purchaser's 
solicitor,  but,  owing  to  a  disagreement  as  to  details,  the 
negotiation  was  broken  off  by  B.  In  a  suit  by  A.  for  spe- 
cific performance,  it  was  contended  in  his  behalf  that  the 
words  "subject  to  letter  and  agreement,"  simply  meant  that 
a  formal  contract  for  the  carrying  out  of  the  agreement 
would  be  sent.  But  the  court  held  that  there  was  no  con- 
cluded contract  between  the  parties,  and  a  demurrer  to  the 
bill  was  allowed  with  costs.'  The  defendant  offered  by 
letter  to  sell  certain  property  to  the  plaintiff,  which  offer 
the  plaintiff  accepted  by  letter,  subject  to  the  title  being 
approved  "by  my  solicitor."  Afterward  the  plaintiff  wrote 
to  say  that  he  must  abandon  the  purchase  unless  he  was 
allowed  to  pay  the  money  by  instalments,  to  which  the 
defendant  assented.  It  was  held  on  appeal  that  the  words 
"subject  to  the  title  being  approved  by  my  solicitor,"  were 
not  merely  an  expression  of  what  would  be  implied  by  law, 
but  constituted  a  new  term  ;  that  the  plaintiff's  letter  was  not 
therefore  an  acceptance,  but  a  new  offer  which  had  never 
been  accepted,  and  that  there  was  no  binding  contract.''  A. 
made  a  proposition  to  B.  stipulating,  among  other  things, 
that  a  lease  should  contain  all  the  covenants  in  the  superior 
lease.  B.  signed  the  agreement,  which  was  tendered,  but 
with  the  qualification  that  there  was  nothing  unusual  in 
such  superior  lease.  A  draft  of  the  proposed  lease  was 
then  sent  to  B.,  who  made  some  alterations  in  it,  and  re- 
quested A.'s  solicitors  to  adopt  them  at  once  or  to  refuse 
the  lease.  The  solicitors  returned  the  lease,  acquiescing  in 
all  the  alterations  except  one,  as  to  assigning  without 
hcense.  It  was  held  that,  up  to  this  time,  there  was  no 
contract,  and  that  B.  was  at  liberty  to  break  off  the  nego- 
tiation.'    And  where  a  proposition  was  made  to  take  an 

'  Brien  v.  Swainson,  L.  R.  Jr.  Ch.  D.,  135. 
^  Hussey  v.  Hornepayne,  L.  R.  8,  Ch.  D.  670. 
^  Lucas  V.  James,  7  Hare,  410. 

12 


178  NON-CONCLUSION    OF    CONTRACT.     '  §    ^37- 

allotment  of  railway  shares,  and  a  letter  was  sent  back 
accepting  the  offer,  but  headed  "  not  transferable,"  it  was 
held  that  the  new  term  thereby  introduced,  postponed  the 
conclusion  of  the  contract/  So,  where  the  plair  tiff  wrote  to 
the  provisional  committee  of  a  railroad  company  for  sixty 
shares,  undertaking,  in  the  form  prescribed  by  the  pros- 
pectus, to  accept  the  same  subject  to  the  regulations  of  the 
company,  and  to  pay  the  deposit  thereon  when  required, 
and  the  committee  wrote  back  that  they  had  allotted  the 
plaintiff  sixty  shares  upon  condition  that  the  deposit  was  to 
be  paid  on  or  before  a  certain  day,  "  in  default  of  which 
the  allotment  would  be  forfeited,"  it  was  held  that  there 
was  no  contract,  there  not  having  been  a  simple  acceptance 
of  the  plaintiff's  proposal.* 

§  137.  Acceptance  when  binding. — When  the  offer  sub- 
mits the  decision  of  some  matter  connected  with  the  trans- 
action to  the  party  to  whom  the  offer  is  made,  an  accept- 
ance making  the  decision  will  constitute  a  contract : '  as 
where  the  offer  leaves  the  day  to  be  named  by  the  other 
party,  and  he  in  accepting  names  the  day  ;*  or  the  proposal 
and  acceptance  may  leave  the  price  or  any  other  term  to 
be  ascertained  in  a  way  agreed.'  A  variation  in  the  accept- 
ance which  is  nugatory  will  not  affect  the  contract :  as  a 
mere  expression  of  hope;'  nor,  as  we ^ have  seen,  an  allu- 

'  Duke  V.  Andrews,  2  Exch.,  290.  "^  Wontner  v.  Shairp,  4  C.  B.,  404. 

'  Boys  V.  Ayerst,  6  Mad.,  316. 

*  Walker  v.  Eastern  Counties  R.R.  Co.,  6  Hare,  594. 

'  Lucas  V.  James,  supra. 

'  Clive  V.  Beaumont,  i  De  G.  &  Sm.,  397.  And  see  Johnson  v.  King,  2  Bing-., 
270.  A.  wrote  to  B.,  offering  to  purchase  certain  land  of  hinj,  and  stated  how  he 
could  make  the  payments.  B.  replied  accepting  A.'s  proposal,  but  said  that  he 
wished  A.  to  take  the  responsibility  of  establishing  the  boundaries,  and  re- 
quested A.'s  answer  as  soon  as  possible.  A.  wrote  back  that  he  would  take  the 
land,  and  would  have  the  boundaries  ascertained  ;  but  desired  that  the  agent  of 
B.  might  attend  to  the  fixing  of  the  line  on  one  side.  Held  that  the  contract  of 
sale  was  complete.  Fitzhugh  v.  Jones,  6  IMunf,  83.  In  another  case,  the  de- 
fendant in  a  letter  to  the  plaintiff's  agent  proposed  to  purchase  a  plantation  at 
eight  thousand  dollars,  six  thousand  dollars  in  cash,  and  two  thousand  dollars  in 
January  following,  and  requested  an  immediate  answer.  The  agent,  by  return 
post,  replied  accepting  the  proposal,  but  added  that  he  presumed  the  two 
thousand  dollars  were  to  bear  interest  from  date.  Held  that  there  was  a  bind- 
ing contract,  and  that  the  suggestion  in  the  letter  of  acceptance  as  to  interest 
did  not  constitute  a  new  term.     Neufville  v.  Stuart,  i  Hill's  S.  S.  C.  Ch.,  159. 


§    138.  TIME    OF    CONCLUSION    OF    CONTRACT.  1 79 

sion  in  the  acceptance  to  the  manner  in  which  the  contract 
is  to  be  carried  out  :  as  by  referring  to  a  formal  agreement 
which  is  to  be  drawn/  As  a  writing  signed  by  the  party 
to  be  charged  is  sufficient  within  the  statute  of  frauds,  it 
follows  that  where  the  offer  embraces  the  whole  of  the  pro- 
posed contract  so  that  a  simple  assent  is  required,  a  parol 
acceptance  may  constitute  an  agreement  binding  on  the 
party  making  the  offer."  So,  where  the  proposition  is  made 
by  the  defendant,  the  plaintiff  is  not  required  to  prove  ac- 
ceptance, the  filing  of  the  bill  being  prima  facie  evidence 
of  acceptance,  capable  of  being  rebutted  by  proof  on  the 
part  of  the  defendant,  that  the  treaty  had  previously  been 
determined/  The  acts  of  a  person  may  be  evidence  of  as- 
sent amounting  to  an  acceptance  which  will  bind  the  party 
making  the  offer/  But  mentally  concluding  to  accept  an 
offer,  without  indicating  such  determination  by  word  or 
act,  will  not  constitute  a  contract/  An  agreement  may  be 
consummated  by  an  offer  and  acceptance  by  telegraph/ 

§  138.  Time  of  conclusion  of  contract. — A  question 
sometimes  arises  as  to  the  time  the  negotiation  culminates 
in  a  contract.  The  contract  is  complete  w^hen  the  answer 
containing  the  acceptance  of  a  distinct  proposition  is  des- 
patched by  mail,  if  it  be  done  with  due  diligence  after  the 
receipt  of  the  letter  containing  the  proposal,  and  before 
any  intimation   is  received  that  the    offer   is  withdrawn.' 

'  Gibbins  v.  Northeastern  Metrop.  Dist.  Asylum,  11  Beav.,  i  ;  Skinner  v. 
M'Douall,  2  De  G.  &  Sm.,  265  ;  atite,  §  135. 

°  Boys  V.  Ayerst,  supra  ;  Warner  v.  Willington,  3  Drew,  523 ;  Coleman  v. 
Upcot,  5  Yin.  Abr.,  527,  PL  17  ;  Palmer  v.  Scott,  i  R.  &  M.,  391.  Contra, 
Lane  v.  McLaughlin,  14  Minn.,  72.  Where  an  offer  made  by  latter  is  verbally 
rejected,  the  writer  of  the  letter  is  released  from  his  offer,  unless  he  consent  to 
renew  the  negotiation.  Sheffield  Canal  Co.  v.  Sheffield,  etc.,  R.R.  Co.,  3  R.R. 
Cas.,  121. 

^  Boys  V.  Ayerst,  6  Mad.,  316.  ■*  Parker  v.  Serjeant,  Finch,  146. 

'  Frith  V.  Lawrence,  i  Paige,  Ch.,  434  ;  White  v.  Corlies,  40  N.  Y.,  467. 

"  Duble  V.  Batts,  38  Te.xas,  312;  Wells  v.  Milwaukee,  etc.,  R.R.  Co.,  30 
Wis.,  605. 

'  Adams  v.  Lindsell,  i  B.  &  A.,  681 ;  Mactier  v.  Frith,  6  Wend.,  103 ;  Levy  v. 
Coke,  4  Ga.,  i  ;  Brisban  v.  Boyd,  4  Paige  Ch.,  17  ;  Averill  v.  Hedge,  12  Conn., 
424 ;  Hamilton  v.  Lycoming  Ins.  Co.,  5  Pa.  St.,  339  ;  Abbott  v.  Shepard,  48  N. 
H.,  14  ;  Stockham  v.  Stockham,  32  Md.,  196  ;  Chicago,  etc.,  R.R.  Co.  v.  Dane, 
43  N.  Y.,  240  ;  Potts  V.  Whitehead,  20  N.  J.  Eq.,  55  ;  2  Kent's  Com.,  9th  Ed.,  640. 


I  So  NON-CONCLUSION    OF    CONTRACT.  §   1 38. 

The  contract  therefore  dates  from  the  posting,  and  not 
from  the  receipt  of  the  letter  of  acceptance,"  An  agree- 
ment to  do  a  certain  thing  on  demand  is  completed  when 
the  demand  is  made.'  The  communication  of  the  accept- 
ance to  the  agent  of  the  person  making  the  offer  is  suffi- 
cient, although  the  agent  does  not  make  it  known  to  his 
principal.' 

'  Potter  V.  Saunders,  6  Hare,  i  ;  Busban  v.  Boyd,  4  Paige  Ch.,  17 ;  Vassar  v. 
Camp,  1 1  N.  Y.,  441  ;  Clark  v.  Dales,  20  Barb.,  42  ;  Falls  v.  Gaither,  9  Porter, 
605  ;  Chiles  v.  Nelson,  7  Dana,  281  ;  Levy  v.  Coke,  4  Ga.,  i  ;  Averill  v.  Hedge, 
12  C  onn.,  424;  Beckwith  v.  Cheever,  21  N.  H.,  41.  Contra,  McCuUoch  v.  Eagle 
Ins.  Co.,  I  Pick.,  278  ;  Thayer  v.  Middlesex  Fire  Ins.  Co.,  10  lb.,  326  ;  Gillespie 
V.  Edmonston,  11  Humph.,  553.  In  Mactier  v.  Frith,  supra,  the  joint  owner  of 
a  cargo  of  brandy  in  course  of  shipment  from  France  wrote,  on  the  24th  of  De- 
cember, from  St.  Domingo,  to  the  other  owner  in  New  York,  proposing  that 
the  latter  should  take  the  cargo  on  his  sole  account ;  to  which  he  replied  that  he 
would  reserve  his  decision  until  he  again  henrd  from  the  party  making  the  offer. 
On  the  7th  of  March  the  owner  in  St.  Domingo  acknowledged  the  receipt  of  the 
answer  to  his  letter,  and  on  the  28th  of  the  same  month  wrote  again,  reiterating 
the  offer  made  in  December.  On  the  25th  of  March  the  owner  in  New  York, 
after  the  arrival  of  the  brandy,  wrote  to  the  owner  in  St.  Domingo  that  he  had 
made  up  his  mind  to  accept  the  offer,  and  that  he  had  credited  his  correspond- 
ent with  the  invoice.  It  was  held  that  the  acceptance  on  the  25th  of  March 
completed  the  contract,  although  the  letters  of  the  25th  and  28th  of  March  did 
not  reach  their  destination  until  after  the  death  of  the  owner  in  New  York, 
which  occurred  on  the  loth  of  April.  "The  better  opinion  of  jurists  is,"  says 
Mr.  Kent  (2  Com.,  477,  note),  "that  as  soon  as  an  offer  by  letter  is  accepted  the 
contract  is  complete,  although  the  acceptance  had  not  been  communicated  to 
the  party  by  whom  the  offer  was  made,  provided  the  party  making  the  offer  was 
alive  when  the  offer  was  accepted."  The  case  of  McCulloch  v.  Eagle  Ins.  Co., 
supra,  which  is  directly  opposed  to  this  view  and  to  current  authority,  was  sub- 
stantially as  follows :  The  plaintiff  having  written  to  the  defendants  on  the  27th 
of  December,  inquiring  on  what  terms  they  would  insure  his  vessel  and  cargo, 
the  defendants  on  the  ist  of  January  wrote  in  reply  that  they  would  do  so  at  a 
percentage  named.  The  letter  of  the  defendants  was  received  by  the  plaintiff 
on  the  3d  of  Januaiy,  and  on  the  same  day  he  mailed  a  reply,  asking  the  de- 
fendants to  fill  out  a  policy  on  the  terms  they  had  offered.  Meanwhile,  the  de- 
fendants, on  the  2d  of  January,  had  written  to  the  plaintiff  withdrawing  their 
proposal ;  but  this  letter  was  not  received  by  the  plaintiff  until  after  he  had 
mailed  his  letter  of  the  3d  of  January.  The  vessel  having  been  lost,  it  was  held 
that  there  w-as  no  insurance.  Parker,  C.  J.,  who  delivered  the  opinion  of  the 
court,  said  that  "  the  offer  did  not  bind  the  plaintiff  until  it  was  accepted,  and 
it  could  not  be  accepted  to  the  knowledge  of  the  defendants  until  the  letter  an- 
nouncing the  acceptance  was  received,  or  at  most  until  the  regular  time  for  its 
arrival  by  mail  had  elapsed." 

'  Beatson  v.  Nicholson,  6  Jur.,  620. 

"  Wright  v.  Bigg,  1 5  Beav.,  592.  The  owner  of  land  having  written  a  letter 
to  his  agent  containing  a  proposition  to  sell  the  land  to  B.,  it  was  held  that  B. 
might  send  a  written  acceptance  directly  to  the  writer  of  the  letter.  And  where 
B.,  after  showing  his  reply  to  the  agent,  and  telling  him  that  he  had  accepted  the 
proposition,  sent  the  letter  containing  it  by  the  agent  to  the  post-office,  it  was 
held  that  the  contract  was  complete  from  the  time  B.'s  letter  was  delivered  into 
the  post-office.     Br)'ant  v.  Boone,  55  Ga.,  438. 


§    139-  EFFECT    OF    REPRESENTATION.  l8l 

§  139.  When  representation  will  constitute  contract. — 
An  offer  and  acceptance  may  consist  of  a  promise  or  rep- 
resentation made  by  one  party  for  the  purpose  of  influenc- 
ing the  conduct  of  the  other  party,  and  acts  done  by  the 
latter  on  the  faith  of  the  same.'  A  representation  may  be 
of  something  past,  present,  or  future.  When  a  thing  is 
falsely  alleged  to  be  an  existing  fact,  and  the  person  mak- 
ing the  representation  knows  it  to  be  false,  or  does  not 
know  that  it  is  true,  and  another  is  thereby  induced  to  act 
to  his  prejudice,  the  former  will  not  be  permitted  to  deny 
the  alleged  fact,  either  at  law  or  in  equity.'  Accordingly, 
where  a  person,  in  a  treaty  of  marriage  with  his  daughter, 
told  the  suitor  that  a  certain  demand  was  not  then  existing, 
he  was  restrained  by  injunction  from  bringing  an  action  to 
recover  the  demand.^  And  where  a  father  represented  to 
a  person  who  proposed  to  marry  his  daughter,  that,  after 
the  death  of  her  parents,  she  would  be  entitled  to  ten 
thousand  pounds,  when  in  fact  it  was  only  about  half  that 
sum,  it  was  held  the  balance  might  be  recovered  from  the 
father's  estate.*  Cases  of  the  misrepresentation  of  facts  as 
existing,  or  past,  do  not  rest  in  contract,  but  are  decided 
on  the  principle  of  preventing  fraud,  or  on  that  of  equita- 
ble estoppel.  Where,  however,  a  representation  of  some- 
thing to  be  done  in  the  future  is  made  for  a  special  pur- 
pose, and  another  acts  on  the  faith  and  in  consequence  of 
it,  it  constitutes  a  contract.  "  There  is  no  middle  term  be- 
tween a  representation  so  made,  to  be  effective  for  such  a 
purpose,  and  a  contract ;  they  are  identical."  '  W^here  a 
writing  was  signed  by  a  lady,  reciting  that  she  intended  to 

'  Hammersley  v.  Du  Biel,  12  CI.  &  Fin.,  62,  note.  See  Ayliffe  v.  Tracy,  2 
P.  Wms.,  64. 

*  Montefiori  v.  Montefiori,  i  W.  Blk.,  364.     See  post,  §  305. 

'Neville  v.  Wilkinson,  i  Bro.  C.  C,  543.  See  Gale  v.  Lindo,  i  Vem.,  475  ; 
Scott  V.  Scott,  I  Cox,  366  ;  Gregg  v.  Wells,  to  A.  &  E.,  90  ;  Freeman  v.  Cooke, 
2  Exch.,  654 ;  Howard  v.  Hudson,  2  Ell.  &  Bl.,  i  ;  Foster  v.  Mentor  Life  Ass. 
Co.,  3  lb.  48. 

"  Bold  V.  Hutchinson,  20  Beav.,  250;  Affd.  5  De  G.  M.  &  G.,  558.  See  also, 
Jameson  v.  Stein,  21  lb.,  5. 

^  Lord  Cranworth  in  Money  v.  Jorden,  2  De  G.  M.  &  G.,  332. 


l82  NON-CONCLUSION    OF    CONTRACT.  §    I40. 

leave  her  granddaughter  a  certain  sum  to  be  secured  by 
bond,  and  the  contents  of  the  writing  were  to  be  commu- 
nicated to  the  intended  husband  of  the  granddaughter, 
which  was  done,  it  was  held  to  constitute  a  contract  capable 
of  being  enforced ;  the  mention  of  the  bond  going  to 
show  that  it  was  meant  the  proposal  should  be  binding  on 
the  party  making  it.'  So,  where  a  father,  in  written  pro- 
posals made  in  a  treaty  of  marriage,  expressed  his  intention 
to  leave  by  will  to  his  daughter,  ten  thousand  pounds,  to  be 
settled  on  her  and  her  children,  and  that  the  will  would  di- 
rect what  disposition  should  be  made  of  the  bequest  in  case 
she  died  without  issue,  it  was  held  to  create  an  obligation  ; 
that  although  the  proposals  were  made  subject  to  revision, 
yet  that  that  power  was  determined  by  their  acceptance  by 
the  intended  husband,  and  his  marriage  with  the  father's 
consent/ 

§  1 40.  Promise  to  be  binding  must  have  been  ttnequivocal. — 
In  concluding  this  head,  it  is  scarcely  necessary  to  say,  that 
to  entitle  a  person  who  has  acted  on  the  faith  of  another's 
representations,  to  relief  on  the  ground  of  contract,  the 
alleged  promise  on  which  he  relied  must  have  been  distinct 
and  absolute.  The  mere  expression  of  what  the  party  may 
probably  do  is  not  sufficient,  as  it  leaves  the  matter  open 
for  further  consideration  and  change  of  purpose.  Where 
a  father,  after  stating  that  he  should  not  enter  into  a  settle- 
ment, said  that  he  would  allow  his  daughter  the  interest  on 
two  thousand  pounds,  and  that  if  she  married  he  might 
bind  himself  to  do  it,  and  pay  the  principal  at  his  decease, 
it  w^as  held  not  to  amount  to  an  agreement."  So,  when  the 
person  making  the  representation  declines  to  enter  into  a 
contract,  and  insists  that  the  other  party  shall  rely  on  his 
word,  as  the  arrangement  is  merely  of  an  honorary  nature,  it 
cannot  be  enforced.'     The  following  case  was  decided  on 

'  Saunders  v.  Cramer,  3  Dr.  &  W.,  87. 

*  Du  Biel  V.  Thompson,  3  Beav.,  469  ;  Affd.  12  CI.  &  Fin.,  61,  n.  And  see 
Montgomery  v.  Reilly,  i  Bli.  N.  S.,  364 ;  i  Dow.  N.  S.,  62. 

'  Randall  v.  Morgan,  12  Ves.,  67.  *  Walpole  v.  Orford,  3  Ves.,  402. 


§   140.  PROMISE    TO    BE    BINDING.  183 

this  principle  :  A.  having  given  a  bond  to  B.  for  the  pay- 
ment of  a  sum  of  money,  and  being  about  to  marry,  B. 
told  him  she  should  never  distress  him  about  the  bond,  that 
she  had  given  it  up  and  should  never  enforce  it.  But  on 
being  asked  to  surrender  the  bond  she  declined  to  do  so, 
saying  that  she  would  be  trusted,  and  that  A.  might  rely  on 
her  word.  A  suit  having  been  brought  on  the  bond  by  B. 
after  A.'s  marriage,  he  applied  to  the  court  for  an  injunc- 
tion. The  representations  of  B.  were  at  first  held  binding ; 
but  on  appeal,  it  was  determined  otherwise  by  a  divided 
court'  So,  where  a  settlement  not  being  ready,  the  mar- 
riage took  place  on  the  gentlem^i's  assurance  that  the  lady 
should  have  the  same  advantage  as  if  the  understanding 
were  in  writing  duly  executed,  the  court  refused  to  inter- 
fere, the  engagement  being  merely  honorary.'  And  the 
same  was  held,  where  a  landlord  wrote  to  his  tenant  giving 
him  a  general  assurance  that  if  he  acted  to  the  satisfaction 
of  the  writer,  the  latter  would  deal  honorably  and  hand- 
somely with  him  in  regard  to  renewing  his  lease.' 

1  Money  v.  Jorden,  15  Beav.,  372  ;  2  De  G.  M.  &  G.,  318  ;  5  House  of  l.ds., 
185.     And  see  Maunsell  v.  White,  i  John  &  L.,  539 ;  Affd.  4  H.  of  Lds.,  1039. 

^Viscountess  Montacute  v.  Maxwell,  i  P.  Wms.,  618. 

^  Price  V.  Asheton,  i  Y.  &  C.  Ex.,  441.  A  father  having  made  his  will,  in 
which  he  left  twelve  thousand  five  hundred  pounds  to  his  daughter,  wrote  to  a 
friend  of  his  in  India,  to  whom  the  daughter  was  sent,  that  if  she  married  to 
suit  him,  her  husband  should  have  two  thousand  pounds  on  the  marriage,  and 
added  :  "  Nor  will  that  be  all.  She  is  and  shall  be  noticed  in  my  will ;  but  to 
what  further  amount  I  cannot  precisely  say,  owing  to  the  present  reduced  and 
reducing  state  of  interest,  which  puts  it  out  of  my  power  to  determine  at  present 
what  I  may  have  to  dispose  of."  The  substance  of  the  foregoing  was  commu- 
nicated to  the  intended  husband.  The  testator  revoked  his  will,  and  made  an- 
other, leaving  out  the  legacy,  and  giving  his  daughter  a  residuary  and  contin- 
gent interest.  It  was  held  that  there  was  no  contract.  Morehouse  v.  Colvin, 
15  Beav.,  341. 


CHAPTER   III. 

INCOMPLETENESS,      UNCERTAINTY,     AND      UNFAIRNESS      OF 

CONTRACT. 

41.  Incomplete  contract  incapable  of  being  specifically  enforced. 

42.  Exceptions  to  rule  as  to  incompleteness  of  contract. 

43.  Contract  incomplete  as  to  time. 

44.  Definiteness  required  as  to  subject  matter. 

45.  Names  of  parties  essential. 

46.  Price  must  be  stated. 

47.  Materiality  of  mode  agreed  <y  for  fixing  price. 

48.  Price  ascertained,  when  mode  of  fixing  it  not  of  essence  of  contract. 

49.  Court  cannot  adopt  omitted  details  which  the  law  does  not  supply. 

50.  Terms  supplied  by  legal  presumption. 

51.  Term,  whether  implied  or  expressed,  may  be  rebutted  or  waived. 

52.  Contract  must  be  certain. 

53.  Contracts  enforced  though  ambiguous, 

54.  Property  to  be  conveyed,  must  be  described  with  certainty. 

55.  Person  to  whom  conveyance  is  to  be  made  must  be  designated. 

56.  Examples  of  uncertain  contracts. 

57.  Contract  must  not  be  contradictory,  or  contain  two  different  agreements. 

58.  Unfair  contract  not  specifically  enforced. 

59.  What  to  be  considered  with  reference  to  fairness  of  contract. 

60.  Omission  of  material  term  through  haste  or  inadvertence. 

61.  Improper  suppression  of  material  fact  without  fraud. 

62.  Contract  entered  into  by  person  under  the  influence  of  spirituous  liquor. 

63.  Rights  of  third  persons  regarded. 

64.  Contracts  for  sale  made  by  trustees  in  breach  of  trust. 

65.  Contract  fair  in  its  inception,  not  rendered  unfair  by  subsequent  unfore- 
seen events. 

66.  Contracts  in  settlement  of  doubtful  rights. 

67.  Where  contract  depends  upon  events  to  be  afterward  made  certain. 

§  141.  Will  constitute  a  defence  that  agreement  not 
consummated. — If  an  alleged  contract  is  incomplete  in  any  of 
its  material  terms,  it  does  not,  of  course,  fully  represent  the 
intention  of  the  parties.  Such  an  instrument  may,  in  a 
given  case,  even  convey  an  incorrect  idea  of  their  intention, 
and  consequently  lack  an  essential  ingredient  of  every  bind- 
ing agreement.  A  contract  is  incomplete  when  any  part 
of  it  remains  to  be  settled  by  negotiation.'  The  result  is 
the  same  when,  notwithstanding  the  terms  of  the  agreement 
are  settled,  some  act  is  omitted  which  is  necessary  to  be  done 

'Potts  v.  Whitehead,  20  N.  J.  Eq.,  55  ;  Myers  v.  Forbes,  24  Md.,  598. 


§  142.  WHEN  INCOMPLETE  CONTRACT  MAY  BE  ENFORCED.  1 85 

in  order  to  show  the  final  assent  of  one  of  the  parties.  As 
a  general  rule,  specific  performance  of  an  incomplete  con- 
tract wnll  not  be  decreed  when  objected  to  on  that  ground.' 
Where  land  commissioners,  being  authorized  by  city  ordi- 
nance to  sell  a  certain  lot  of  land  subject  to  the  approval  of 
the  mayor,  advertised  it  for  sale,  and  received  an  offer  from 
a  person  which  they  voted  to  accept,  upon  which  vote  the 
mayor  endorsed  his  approval,  and  a  deed  was  prepared,  but 
never  signed,  it  was  held  that  there  was  no  contract  capa- 
ble of  being  specifically  enforced."  "The  vote,  although 
approved  by  the  mayor,  did  not  import  a  contract.  It  was 
to  be  communicated  to  the  proper  officers  of  the  city  as  an 
authority  to  them  to  execute  a  deed,  and  it  contemplated 
the  deed  as  the  only  contract  which  the  city  was  to  make 
with  the  plaintiff.  It  was  thus  a  mere  preliminary  to  the 
completion  of  the  contract."' 

§  142.  When  incomplete  contract  may  be  enforced. — An 
exception  to  the  above-mentioned  rule,  arises  w^here  the 
contract  has  been  so  far  performed  by  the  plaintiff  that  the 

1  Hopkins  v.  Gilman,  22  Wis.,  476  ;  Madox  v.  McQuean,  3  A.  K.  Marsh,  400  ; 
Ohio  V.  Baum,  6  Ohio,  383  ;  Southern  Ins.  Co.  v.  Cole,  4  Fla.,  359;  Hammer  v. 
McEldowney,  46  Pa.  St.,  334;  McKibbin  v.  Brown,  14  N.  J.  Eq.,  13.  A  con- 
tract by  an  insurance  company  to  issue  a  policy  of  insurance,  must  be  fully  con- 
summated, or  equity  will  not  compel  specific  performance.  Neville  v.  Merchant's 
Ins.  Co.,  19  Ohio,  452.  A  mere  understanding  between  husband  and  wife,  that 
land  bouf^ht  by  the  husband  in  the  wife's  name,  should,  in  certain  contingencies, 
revert  to  him,  is  not  sufficiently  definite  to  be  specifically  enforced.  There  should 
be  a  definite  agreement  to  convey.  Johnson  v.  Johnson,  16  Minn.,  512.  In  the 
foregoing  case,  the  complaint  alleged  that  the  conveyance  was  made  to  the  wife 
for  the  sole  purpose,  by  her  understood  and  assented  to,  of  providing  a  home  for 
her  in  case  she  should  survive  her  husband,  and  that  it  was  always  mutually 
understood  between  plaintiff  and  his  wife,  that,  in  case  he  should  survive  her,  the 
title  to  the  premises  should  vest  in  him,  and  should  not  descend  to  her  heirs  ; 
that  it  was  the  intention  of  her  and  the  plaintiff  to  have  had  prepared  and  duly 
executed  the  necessary  and  proper  instrument  in  writing,  to  effect  the  purpose 
aforesaid,  but,  through  inadvertence,  and  neglect,  and  the  sudden  and  unexpected 
decease  of  his  said  wife,  no  writings  were  prepared  or  executed  conveying  or  dis- 
posing of,  or  in  any  way  or  manner  affecting,  the  said  premises,  or  any  part 
thereof.  Whether,  if  a  parol  agreement  by  the  wife  to  convey  were  alleged,  the 
allegations  that  the  plaintiff  entered  into  possession  and  made  valuable  improve- 
ments, etc.,  v.'ould,  in  view  of  the  other  facts  alleged  and  of  the  presumptions  of 
law  therefrom,  show  that  the  entry  and  possession  of  the  plaintiff,  and  the  im- 
provements made,  were  under  and  in  pursuance  of  the  alleged  contract  of  the 
wife,  so  as  to  authorize  a  specific  performance  of  the  contract,  query,  lb.,  per 
McMillan,  J. 

*  Dunham  v.  City  of  Boston,  12  Allen,  375.  ^  lb.,  per  Chapman,  J. 


1 86        INCOMPLETENESS,  ETC.,  OF  CONTRACT.     §  1 42. 

defendant  derives  benefit  from  it,  and  unless  it  is  enforced 
the  plaintiff  will  be  without  redress.  A.,  who  had  the  lease 
of  a  house  for  a  term  of  eighty  years,  and  having  forty-nine 
years  to  run,  contracted  with  B.  to  let  the  premises  to  him 
for  a  specified  rent.  The  time  the  under-lease  was  to  con- 
tinue was  not  designated,  but  the  contract  recited  that  A. 
agreed  to  let  B.  have  a  lease  at  the  same  rent  "  at  any  period 
he  may  feel  disposed  "  ;  and  further,  "  not  to  molest,  dis- 
turb, or  raise  the  rent  of  B.  after  his  having  laid  out  money 
in  improving  the  said  premises."  B.  at  the  time  had  no 
knowledge  of  the  nature  of  A.'s  interest  in  the  premises. 
B.  having  taken  possession  and  expended  a  considerable 
sum  of  money  in  improvements,  and  the  lease  having  over 
twenty  years  to  run,  the  personal  representatives  of  A. 
advertised  the  property  for  sale  without  making  mention  of 
any  interest  or  claim  of  B.  Thereupon  the  latter  brought 
a  suit  for  specific  performance  and  an  injunction,  to  which 
it  was  objected  that  the  agreement  was  too  vague  to  be  en- 
forced. It  was,  however,  held  that  B.  was  entitled  to  an 
under-lease  for  the  residue  of  the  term.'  So  when  the  in- 
completeness of  the  contract  has  arisen  through  the  default 
of  the  defendant,  and  the  objection  can  be  remedied,  the 
court  will  not  refuse  to  interfere.'  So,  a  suit  may  be  main- 
tained on  a  contract  w^here,  although  some  term  as  to  price 
or  subject  matter  be  not  ascertained,  yet  the  court  has  the 
means  of  ascertaining  it.  Thus,  in  a  contract  for  the  sale 
of  land  under  an  act  of  Parliament  in  which  the  sum  was  not 
ascertained,  the  court  directed  the  defendants  to  issue  their 
warrant  to  the  sheriff  to  summon  a  jury  to  fix  the  compensa- 
tion.' And  where  a  memorandum  of  agreement  for  the  sale 
of  real  estate,  referred,  for  a  description  of  the  property  sold, 
to  the  deeds  in  the  possession  of  a  person  named,  it  was  held 
sufficient,  as  the  property  might  be  ascertained  before  the 

'  Kusel  V.  Watson,  L.  R.  11,  Ch.  D.  129. 

'  Pritchard  v.  Ovey,  i  J.  &  W.,  396 ;  Lord  Kensington  v.  Phillips,  3  Dow.,  61. 

'  Walker  v.  Eastern  Counties  R.R.  Co.,  6  Hare,  594. 


§    143-  OBJECTION    AS    TO    TIME.  1 87 

master.*  So,  a  contract  to  sell  land  within  certain  bounda- 
ries, described  as  partly  leasehold  and  partly  freehold,  was 
held  a  valid  agreement  to  convey  the  vendor's  interest  in 
the  property,  as  the  boundary  of  the  different  tenures  might 
be  ascertained.' 

§  143.  Objcciion  as  to  time. — The  contract  may  be  in- 
complete in  respect  to  time.  Where  a  person  made  an  offer 
in  writing  to  convey  land,  fixing  the  time  when,  and  the 
price  at  which,  it  should  be  conveyed,  naming  a  certain  sum 
to  be  paid  upon  the  execution  of  the  deed,  and  the  balance 
in  a  mortgage  on  the  land  at  six  per  cent,  interest,  it  was 
held  that  as  the  time  when  the  amount  secured  by  the  mort- 
gage was  to  be  paid  was  not  designated,  a  material  part  of 
the  contract  had  been  left  open  for  further  negotiation, 
and  hence  specific  performance  would  not  have  been  decreed, 
even  if  the  offer  had  been  accepted.'  So,  a  contract  for  the 
sale  of  land  in  which  the  parties  agreed  to  appoint  two  per- 
sons to  fix  the  cash  value  of  a  house  and  lot  that  the  vendor 
was  to  take  of  the  vendee  in  part  payment,  but  which  did 
not  specify  within  what  time  it  should  be  done,  was  held 
too  incomplete  to  be  enforced  in  equity.'  And  an  agree- 
ment for  the  sale  of  land  which  provided  that  the  grantee 
should  make  payment  by  assuming  a  debt  of  the  grantor, 
and  pay  the  balance  on  such  terms  as  might  "  be  agreed  on 
by  said  parties,"  was  held  incapable  of  enforcement.  "  So 
far  as  the  defendant  had  bound  himself,  it  was  upon  an 
express  stipulation  that  the  terms  of  payment  should  be 
only  such  as  he  might  thereafter  consent  to  in  a  further 
agreement.  Time  being  included  in  the  terms  thus  became 
of  the  essence  of  the  contract." '  It  is  sufficient  for  the  pur- 
poses of  defence,  that  the  contract  was  essentially  incom- 

*  Owen  V.  Thomas,  3  M.  &  K.,  353.  And  see  Haywood  v.  Cope,  4  Jur.  N.  S.,  227. 

*  Monro  v.  Taylor,  8  Hare,  5 1 . 

2  Potts  V.  Whitehead,  20  N.  J.  Eq.,  55.    And  see  Williams  v.  Stewart,  25  Minn., 
516.     See,  however,  Friebert  v.  Burgess,  11  Md.,  452. 

*  Baker  v.  Glass,  6  Munf.,  212. 

'Huflfv.  Shepard,  58  Mo.,  242.     See  Wiley  v.  Robert,  31  lb..  212. 


l88        INCOMPLETENESS,  ETC.,  OF  CONTRACT.     §  I44. 

plete  when  the  suit  was  brought,  as  that  would  show  that 
the  plaintiff,  at  the  filing  of  the  bill,  had  no  cause  of  action. 
Accordingly,  where  the  consent  of  a  tenant  for  life  was 
necessary  to  the  contract,  it  was  held  not  enough  that  the 
consent  was  given  after  the  commencement  of  the  suit  and 
before  the  hearing.'  So,  the  adoption  of  a  contract  by  a 
third  person  cannot  relate  back  so  as  to  render  a  party  lia- 
ble to  a  suit  for  its  non-performance,  when  its  non-perform- 
ance was  at  the  time  justifiable.'' 

§  144.  Definiteness  required  as  to  thing  stipulated. — The 
subject  matter  of  a  contract  being  the  most  im.portant  term, 
it  must  be  defined  with  such  clearness,  as  that  the  party 
may  know  with  certainty  what  he  is  contracting  for,  and 
that  it  may  be  ascertained  by  the  court.'  It  need  not,  how- 
ever, be  so  described  as  to  leave  no  doubt  as  to  what  thing 
is  meant ;  extrinsic  evidence  being  admissible  to  explain 
ambiguous  terms  capable  of  explanation  in  order  to  show 
what  the  parties  intended  by  the  language  employed,  and 
the  relation  they  sustained  toward  each  other  at  the  time  of 
the  execution  of  the  contract.'  If  the  contract  refers  to 
another  writing,  parol  evidence  is  admissible  to  identify  the 
writing ; '  but  the  subject  matter  must  be  described  with 
such  precision,  as  to  be  at  least  capable  of  identification  by 
the  aid  of  such  extrinsic  evidence  as  may  be  admissible  for 


1  Adams  v.  Brooke,  i  Y.  &  C.  C.  C,  627. 

'  Right  V.  Cuthell,  5  East.,  491  ;  Doe  D.  Mann  v.  Walters,  10  B.  &  C,  626 ; 
Doe  D.  Lyster  v.  Goldwin,  2  Q.  B.,  143. 

^  Stewart  v.  Alliston,  i  Mer.,  26,  33  ;  Kennedy  v.  Lee,  3  lb.,  441  ;  Daniels  v, 
Davison,  16  Yes.,  256;  King  v.  Ruckman,  20  N.  J.  Eq.,  316;  Carr  v.  Passaic 
Land,  etc.,  Co.,  22  lb.,  85  ;  Ross  v.  Baker,  72  Pa.  St.,  186  ;  Miller  v.  Campbell, 
52  Ind.,  125  ;  Holmes  v.  Evans,  48  Miss.,  217  ;  Bell  v.  Warren,  39  Texas,  106  ; 
Lynes  v.  Hayden,  119  Mass.,  482  ;  post,  §  152. 

'See  Murly  v.  M'Dermott,  8  A.  &  E.,  138  ;  Clayton  v.  Lord  Nugent,  13  M. 
&  W.,  207  ;  Sari  v.  Bourdillon,  i  C.  B.  N.  S.,  188  ;' Waring  v.  Ayres,  40  N.  Y., 
357  ;  Robeson  v.  Hornbaker,  2  Green  Ch.,  60  ;  Fowler  v.  Redican,  52  111.,  405.; 
Mead  v.  Parker,  115  Mass.,  413.  Thus,  extrinsic  evidence  was  admitted  to  show 
what  property  was  intended  by  the  words  "Mr.  Ogilvie's  house,"  Ogilvie  v.  Fol- 
jambe,  3  Mer.,  53;  "The  house  in  Newport,"  Owen  v.  Thomas,  3  M.  &  K., 
353  ;  and  "  The  property  in  Cable  Street,"  Bleakley  v.  Smith,  11  Sim.,  150. 

"  Clinan  v.  Cooke,  i  Sch.  &  Lef.,  21,  33. 


§    145-  INDEFINITENESS    AS    TO    PERSONS.  1 89 

that  purpose.'  Where  a  bond  for  the  sale  of  real  estate 
was  objectionable  in  every  respect,  except  the  description, 
and  that  was  not  complete,  but  consistent  so  far  as  it  went, 
it  was  held  that  it  might  be  completed  by  extrinsic  parol 
evidence,  provided  a  new  description  was  not  introduced 
into  the  contract,  and  provided  the  pleadings  in  the  case 
contained  the  necessary  averments,'  When  it  is  necessary 
to  identify  the  thing  in  respect  to  which  specific  performance 
is  sought,  its  connection  with  the  subject  matter  of  the  con- 
tract must  be  alleged  in  the  bill  and  be  supported  by  proof.' 
§  145.  hidefiniteness  as  to  persons. — To  render  a  con- 
tract a  binding  agreement,  it  must,  of  course,  contain  the 
names  of  the  contracting  parties.'  The  term  "vendor"  is 
not  of  itself  a  sufficient  description  of  one  of  the  parties. 

'  Price  V.  Griffith,  i  De  G.  M.  &  G.,  80  ;  King  v.  Wood,  7  Miss.,  389.  "  The 
general  rule  I  take  to  be,  that,  where  the  words  of  any  written  instrument  are 
free  from  ambiguity  in  themselves,  and  where  external  circumstances  do  not 
create  any  doubt  or  difficulty  as  to  the  proper  application  of  those  words  to 
claimants  under  the  instrument,  or  the  subject  matter  to  which  the  instrument 
relates,  such  instrument  is  always  to  be  construed  according  to  the  strict,  plain, 
common  meaning  of  the  words  themselves;  and  that  in  such  case  evidence  de- 
hors the  instrument,  for  the  purpose  of  explaining  it  according  to  the  surmised 
or  alleged  intention  of  the  parties,  is  utterly  inadmissible.  The  true  interpreta- 
tion, however,  of  every  instrument  being  manifestly  that  which  will  make  the 
instrument  speak  the  intention  of  the  party  at  the  time  it  was  made,  it  has  al- 
ways been  considered  an  exception,  or  perhaps,  to  speak  more  precisely,  not  so 
much  an  exception  from,  as  a  corollary  to,  the  general  rule  above  stated,  that 
where  any  doubts  arise  upon  the  true  sense  and  meaning  of  the  words  them- 
selves, or  any  difficulty  as  to  their  application  under  the  surrounding  circum- 
stances, the  sense  and  meaning  of  the  language  may  be  investigated  and  ascer- 
tained by  evidence  dehors  the  instrument  itself;  for  both  reason  and  common 
sense  agree  that  by  no  other  means  can  the  language  of  the  instrument  be  made 
to  speak  the  real  mind  of  the  party."  Lord  Tindal,  C.  J.,  in  Shore  v.  Wilson,  9 
C.  &  F.,  355.  "  There  is  no  material  difference  of  principle  in  the  rule  of  inter- 
pretation between  wills  and  contracts,  except  what  naturally  arises  from  the  dif- 
ferent circumstances  of  the  parties.  The  object  in  both  cases  is  the  same, 
namely,  to  discover  the  intention  ;  and  to  do  this,  the  court  may,  in  either  case, 
put  themselves  in  the  place  of  the  party,  and  then  see  how  the  terms  of  the  in- 
strument affect  the  property  or  subject  matter."     i  Greenlf.  Ev.,  Sec.  287. 

'^  Torr  V.  Torr,  20  Ind.,  118. 

'  Price  V.  Griffith,  i  De  G.  M.  &  G.,  80.  If  the  description  be  substantially 
correct,  and  is  erroneous  in  a  slight  degree  only,  the  purchaser  will  be  compelled 
to  perform  the  contract,  if  the  sale  is  fair  and  there  is  a  good  title.  If  the  pur- 
chaser gets  substantially  what  he  bargained  for,  he  will  in  general  be  held  to  the 
purchase,  with  compensation  for  small  deficiencies.  King  v.  Bardeau,  6  Johns. 
Ch.,  38.     S&&f>osi,  §  502. 

■*  Champion  v.  Plummer,  i  N.  R.,  253  ;  Warner  v.  Willington,  3  Drew,  523  ; 
Squire  v.  Whitton,  i  House  of  Lds.,  333  ;  post,  §  155  ;  see  Smith  v.  Wheatcroft, 
L.  R.  9,  Ch.  D.  223. 


ipO  INCOMPLETENESS,    ETC.,    OF    CONTRACT.       §§   1 46,    1 47. 

On  a  sale  of  real  estate  at  auction,  the  particulars  and  con- 
ditions of  sale  did  not  disclose  the  vendor's  name,  but  stated 
that  B,  was  the  auctioneer.  The  purchaser  of  one  of  the 
lots  signed  a  memorandum  acknowledging  his  purchase, 
and  B.  signed  at  the  foot  of  the  memorandum  the  follow- 
ing, "Confirmed  on  behalf  of  the  vendor."  It  was  held 
that,  as  the  memorandum  did  not  sufficiently  show  who 
the  vendor  was,  a  suit  for  the  specific  performance  of  the 
contract  of  sale  must  be  dismissed.' 

§  146.  Uncertainty  as  to  consideration. — In  every  con- 
tract of  sale  the  price  is  essential ;  and  if  it  is  neither  ex- 
pressed nor  capable  of  ascertainment,  the  contract  cannot 
be  enforced  by  reason  of  its  incompleteness  ; '  as,  where  a 
person  agrees  to  sell  land  to  another  for  a  certain  sum  less 
than  any  one  else  will  give,  it  being  impossible  to  tell  what 
that  would  be."  Where  the  only  memorandum  of  an 
agreement  for  the  sale  of  land  was  a  receipt  for  part  of 
the  purchase  money,  in  which  the  lot  was  defined,  but  the 
price  and  other  terms  of  the  sale  not  stated,  it  was  held  in- 
sufficient to  entitle  the  vendee  to  a  specific  performance.* 
So,  specific  performance  was  refused  where  it  was  agreed 
that  the  price  should  be  fixed  by  arbitrators,  but  their 
award  did  not  do  it  with  clearness.'  And  where  an  award 
was  based  on  an  erroneous  view  of  the  facts,  and  was  such 
as  the  court  could  not  act  on  by  reason  of  the  improper 
conduct  of  one  of  the  arbitrators,  it  was  held  that  the  suit 
could  not  be  maintained.* 

§  147.  Lnportance  of  manner  of  fixing  price. — Although 

'  Potter  V.  Duffield,  L.  R.  18,  Eq.  4.  But  it  has  been  held  that  property  may 
be  put  up  for  sale  at  auction  in  behalf  of  "the  proprietor,"  and  that  it  is  suffi- 
cient if  the  owner's  name  is  disclosed  when  the  bill  is  filed  for  specific  perform- 
ance. Beer  v.  London  &  Paris  Hotel  Co.,  L.  R.  20,  Eq.  412  ;  and  see  Rossiter 
V.  Miller,  L.  R.  5,  Ch.  D.  648  ;  Sale  v.  Lambert,  L.  R.  18,  Eq.  i. 

^  Elmore  v.  Kin^scote,  5  B.  &  C,  583 ;  Goodman  v.  Griffiths,  26  L.  J.  Exch., 
145  ;  Spangler  v.  Danforth,  65  111.,  152  ;  Huff  v.  Shepard,  58  Mo.,  242  ;  Mastin 
V.  Halley,  61  lb.,  196;  Grace  v.  Denison,  114  Mass.,  116. 

'  Bromley  v.  Jefferies,  2  Vem.,  415.  *  Soles  v.  Hickman,  20  Pa.  St.,  180. 

*  Hopcraft  v.  Hickman,  2  Sim.  &  Stu.,  130. 

"  Chichester  v.  Mclntyre,  4  Bli.  N.  S.,  79. 


§  147- 


IMPORTANCE  OF  MANNER  OF  FIXING    PRICE.  I9I 


it  is  competent  for  the  parties  to  the  contract  to  agree  on  a 
mode  of  thereafter  fixing  the  price,  yet,  until  the  price  is 
determined,  the  contract  will  not  be  enforced/  Accord- 
ingly, where  the  parties  to  an  agreement  for  the  sale  of 
land  left  the  price  to  be  afterward  ascertained  and  fixed  by 
them,  and  one  of  them  died  before  the  price  had  been 
fixed,  it  was  held  that  the  agreement  was  too  incomplete  to 
sustain  a  bill  for  specific  performance/  The  method  of 
ascertaining  the  price  may  be  material  :  as  that  it  be  deter- 
mined by  arbitrators  ;  in  which  case,  if  this  be  not  done, 
the  contract  continues  incomplete,  and  consequently  inca- 
pable of  enforcement'  Were  it  not  so,  a  substantial  part 
of  the  agreement  would  be  changed  by  the  court,  and,  in 
fact,  a  different  one  made  from  that  entered  into  by  the 
parties,  which  would  be  wholly  inadmissible."     In  accord- 

'  Darby  v.  Whitaker,  4  Drew,  134.  ^  Graham  v.  Call,  5  Munf.,  396. 

^  Norfleet  v.  Southall,  3  Murphy,  189.  "A  man  who  agreed  to  sell  at  a  price 
to  be  named  by  A.,  B.,  and  C,  could  not  be  compelled  by  a  court  of  equity  to 
sell  at  any  other  price."     Sir  J.  Leach  in  Morse  v.  Merest,  6  Mad.,  26. 

*  A  court  of  equity  cannot  change  a  contract  and  then  enforce  it.  Valetti  v. 
White  Water  Canal  Co.,  4  McLean,  192;  Cassady  v.  Woodbury,  13  Iowa,  113  ; 
Haskell  v.  Allen,  23  Me.,  448;  Grey  v.  Tubbs,  43  Cal.,  359;  Phila.,  etc.,  R.R. 
Co.  V.  Lehigh,  etc.,  Co.,  36  I'a.  St.,  204.  The  following  are  a  few  of  the  numer- 
ous examples  of  this  very  obvious  principle  :  A.  agreed  to  convey  to  B.  a  large 
tract  of  land  on  payment  of  the  purchase  money.  B.  went  into  possession  of 
the  land,  and  continued  in  possession  twelve  years,  and  paid  a  small  portion  of 
the  purchase  money.  The  court  refused  to  decree  a  conveyance  of  a  propor- 
tionate quantity  of  the  tract  of  land,  which  would  be  injured  by  such  division. 
Prater  v.  Miller,  3  Hawks  N.  C,  628.  Where  the  heirs  of  a  vendee  who  had  a 
contract  for  land,  and  had  paid  the  whole  price,  sold  and  conveyed  a  portion  of 
the  land,  it  was  held  that  their  grantee  could  not  maintain  a  bill  against  the 
heirs  of  the  vendor  to  compel  them  to  execute  a  conveyance  of  the  part  sold, 
for  the  reason  that  such  a  bill  asked  the  court  to  make  a  new  contract  for  the 

parties.     Lord  v.   Underdunck,    i    Sandf.  Ch.,   46.      In  v.   Walford,  4 

Russ.,  372,  A.  had  contracted  with  B.  to  convey  to  him  an  estate,  and  before 
the  conveyance  B.  resold  it  to  C,  and  A.  signed  a  writing  with  B.  agreeing  to 
convey  to  C,  at  B.'s  request.  C.  then  agreed  to  convey  the  estate  to  W.,  who 
gave  notice  of  that  agreement  to  A.,  and  required  him  to  convey  the  estate  to 
W.  In  consequence  of  this.  A.,  when  requested  by  B.  to  convey  the  estate  to 
C,  refused.  B.  then  filed  a  bill  against  A.  to  compel  him  to  convey  to  C.  It 
was  held  that  W.  was  not  a  necessary  party  ;  that  A.  should  have  conveyed  to 
C,  and  that  A.  must  pay  the  costs  of  the  suit.  A.  contracted  to  remove  a  bank 
of  earth  and  gravel  from  B.'s  land,  agreeing  not  to  pass  over  B.'s  land,  and  to 
pay  one  dollar  for  each  square  removed.  Before  the  work  was  completed,  C, 
over  whose  land  it  was  necessary  to  pass,  revoked  his  license  to  A.,  and  B. 
offered  to  permit  the  agents  of  A.  to  carry  the  gravel  over  his  land  ;  but  this 
would  be  very  expensive.  As  an  acceptance  of  B.'s  offer  would  constitute  a 
new  contract,  and  if  B.  had  sustained  any  damage  by  the  non-completion  of  the 


192  INCOMPLETENESS,    ETC.,    OF    CONTRACT.  §    I47. 

ance  with  this  principle,  where  it  was  agreed  that  property 
should  be  sold  at  a  price  to  be  fixed  by  valuers,  one  to  be 
appointed  on  each  side,  or  by  their  umpire,  and  the  valuers 
were  unable  to  agree,  it  was  held  that  the  court  could  not 
supply  the  defect  by  appointing  other  valuers.'  And  where 
a  husband  entered  into  an  agreement  to  set  aside  a  certain 
amount  of  his  property  for  the  maintenance  of  his  wife,  to 
be  selected  by  her,  and  valued  by  two  designated  persons, 

contract,  he  had  a  remedy  at  law,  specific  performance  was  refused.  Sears  v. 
City  of  Boston,  16  Pick.,  357.  Where  a  husband  and  wife  brought  a  suit  for 
the  specific  performance  of  a  parol  contract  to  convey  land  to  the  wife,  and  the 
evidence  showed  that  the  agreement  was  to  convey  to  the  husband,  it  was  held 
that  the  bill  must  be  dismissed,  though  the  proof  showed  that  the  husband 
afterward  directed  the  conveyance  to  be  made  to  his  w^ife,  the  other  party 
assenting.  Wilson  v.  Wilson,  6  Mich.,  9.  The  plaintiff  agreed  to  sell  certain 
real  estate  to  a  railroad  company  for  a  sum  to  be  paid  on  completion,  with  inter- 
est at  four  per  cent,  from  the  date  of  the  agreement.  The  company  was  to  be 
entitled  to  possession  on  making  a  given  deposit.  If,  without  fault  of  the  vendor, 
the  purchase  was  not  completed  in  fix  months,  the  interest  from  that  time  was 
to  be  at  the  rate  of  five  per  cent.  The  company  paid  the  deposit,  and  took  pos- 
session. More  than  four  years  having  elapsed  witliout  completion  by  the  com- 
pany, which  upon  being  applied  to  alleged  its  inability,  the  plaintiff  filed  a  bill 
for  specific  performance,  and  asked  that  he  might  be  declared  entitled,  at  his 
option,  either  to  enforce  the  agreement,  or  to  rescind  it,  and  that  in  the  latter 
case  the  deposit  might  be  declared  forfeited  to  the  plaintiff,  and  that  the  com- 
pany might  be  ordered  to  deliver  up  possession  of  the  land  to  him,  and  might 
be  restrained  by  injunction  from  remaining  in  possession  or  using  the  land  for 
the  purposes  of  a  railway.  Held  that  the  vendor  could  not  claim  any  right  be- 
yond what  was  given  by  the  agreement,  and  as  that  provided  for  the  payment 
of  an  increased  rate  of  interest  in  case  of  delay,  he  was  not  entitled  to  an  order 
on  motion  for  the  payment  of  the  balance  of  the  purchase  money  into  court,  but 
must  go  on  to  decree.  J-'rj'se  v.  Cambrian  R.  R.  Co.,  L.  R.  2,  Ch.  444.  The  defend- 
ant advanced  money  under  a  verbal  agreement  that  an  existing  mortgage  should 
be  considered  security  for  such  advance.  A  court  of  equity  refused  to  hold  the 
land  as  security  for  the  debt,  or  compel  the  execution  of  a  proper  mortgage  ;  a 
loan  of  money  with  the  mere  understanding  that  the  land  of  the  borrower  is 
security  for  the  debt  not  creating  a  mortgage,  legal  or  equitable.  Stoddart  v. 
Hart,  23  N.  Y.,  556.  "  If  A.  should  loan  money  to  B.,  and  take  a  bond,  with 
the  understanding  that  the  farm  of  the  latter  should  be  considered  a  security, 
but  with  no  intention  or  agreement  to  make  a  mortgage  or  writing  of  any  sort, 
as  the  law  requires  in  order  to  create  a  lien,  none  would  be  created  in  law  or  in 
equity.  The  transaction,  in  judgment  of  law,  would  amount  simply  to  a  loan 
upon  the  bond  of  the  borrower.  Such,  I  think,  was  the  transaction  in  ques- 
tion." Ibid.,  per  Comstock,  Ch.  J.  Equity  will  not  ordinarily  enforce  a  con- 
tract into  which  new  terms  are  to  be  introduced  by  parol  evidence  ;  as  courts  of 
equity  deem  the  writing  to  be  higher  proof  of  the  real  intention  of  the  parties 
than  parol  proof  can  generally  be,  independently  of  the  objection  which  arises 
under  the  statute  of  frauds.  Whitaker  v.  Van  Schoiack,  5  Oregon,  113  ;  Heth 
V.  Woodridge,  6  Rand,  605  ;  Hancock  v.  Edwards,  7  Humph.,  349. 

'  Milnes  v.  Gery,  14  Yes.,  400.  And  see  Blundell  v.  Brettargh,  17  lb.,  232  ; 
Agar  V.  xMacklew,  2  S.  &  S.,  418  ;  Frith  v.  Midland  R.R.  Co.,  L.  R.  20,  Eq.  100; 
Norfleet  v.  Southall,  3  Murphy,  189;  Graham  v.  Call,  5  Munf.,  396;  Baker  v. 
Glass,  6  lb.,  212. 


§   148.  Wnp:N    PRICE    ASCERTAINED    BY    COURT.  1 93 

it  was  held  that  a  court  of  equity  had  no  power  to  select 
other  appraisers  and  enforce  performance  of  the  agreement 
without  the  consent  of  the  husband.'  So,  where  it  was 
stipulated  that  the  price  should  be  determined  in  one  of 
two  specified  ways,  and  no  election  as  to  the  mode  of  as- 
certainment was  made,  it  was  held  that  there  was  no  con- 
tract/ The  difficulty  will  not  be  obviated,  notwithstanding 
the  price  has  not  been  fixed  in  consequence  of  the  defend- 
ant's default.  Thus,  where  the  contract  was  to  sell  at  a 
price  to  be  determined  by  arbitrators,  and  the  defendant 
having  refused  to  execute  an  arbitration  bond,  it  was  doubt- 
ful whether  any  award  would  be  made,  the  court  declined 
to  interfere  ; '  and  it  did  the  same  where  the  refusal  of  one 
of  the  valuers  to  proceed  was  said  to  have  been  caused  by 
his  being  told  by  the  defendant  that  he  did  not  intend  to 
complete." 

§  148.  When  price  ascertained  by  court. — When  the 
mode  agreed  upon  for  fixing  the  price  is  not  of  the  essence 
of  the  contract,  but  the  agreement  is  substantially  for  a  sale 
at  a  fair  price,  upon  a  failure  to  determine  the  amount,  the 
court  looking  to  the  substance  rather  than  to  the  form  of 
the  contract,  will  adopt  some  other  means  of  arriving  at 
the  price,  and  of  thus  carrying  out  the  agreement  in  its 
essential  features.^  It  was  said  in  one  case,  that  where  pos- 
session and  expenditure  were  referable  to  an  agreement  to 
give  a  fair  consideration,  the  court  would   "endeavor,  by 


'  Willingsford  v.  Willingsford,  6  Har.  &  Johns.,  485. 

^  Morgan  v.  Milman,  3  De  G.  M.  &  G.,  24. 

^  Wilks  V.  Davis,  3  Mer.,  507.  *  Darbey  v.  Whitaker,  4  Drew,  134. 

"  Smith  V.  Peters,  L.  R.  20,  Eq.  511;  Whitlock  v.  Duffield,  i  Hoffm.  Ch.,  1 10 ; 
Vandoren  V.  Robinson,  16  N.  J.  Eq.,  no.  "Lord  Eldon,  in  Cooth  v.  Jackson, 
6  Ves.,  34,  seems  to  have  doubted  whether  the  court  would  ever  take  upon  it- 
self, in  this  respect,  to  separate  the  essential  from  the  non-essential  terms  of  the 
contract.  He  considered  that  when  a  reference  had  been  made  to  arbitration, 
and  the  judgment  of  the  arbitrators  was  not  given  in  time  and  manner  accord- 
ing to  the  agreement,  the  court  had  no  jurisdiction  to  substitute  itself  for  the 
arbitrators,  and  make  the  award,  even  where  the  substantial  thing  to  be  done 
was  agreed  upon  between  the  parties,  and  the  time  and  manner  in  which  it  was 
to  be  done  was  that  which  they  had  put  upon  others  to  execute."  Fry  on  Specif. 
Perform.,  96  ;  and  see  Blundell  v.  Brettargh,  17  Ves.,  232. 

13 


194        INCOMPLETENESS,  ETC.,  OF  CONTRACT.     §  1 49. 

every  means  within  the  legitimate  bounds  of  its  jurisdiction, 
to  ascertain  the  amount  of  the  consideration.'"  In  a  suit 
on  a  contract  for  the  sale  of  land  and  bleach  works  at  a 
sum  specified,  the  plant  and  machinery  to  be  taken  at  a 
price  to  be  fixed  l)y  valuers,  it  was  held  that  as  the  latter 
was  a-  subsidiary  stipulation,  the  price  might  be  ascertained 
in  another  way,  which,  having  been  done,  specific  perform- 
ance was  decreed.'  So,  where  a  contract  to  grant  a  lease 
provided  that  the  lease  should  contain  such  contingencies 
as  a  certain  person  should  deem  reasonable  and  proper,  the 
settlement  of  the  lease  was  referred  to  a  master,  the  agency 
of  the  person  named  not  being  regarded  as  of  the  essence 
of  the  contract,  and  the  court  holding  that  it  would  not 
grant  relief  through  the  medium  of  a  reference  compulsory 
on  the  other  party.'  An  obstacle  to  the  ascertainment  of 
the  price  in  the  mode  agreed,  may  be  interposed  by  the  un- 
expected disabling  of  one  of  the  parties  ;  and  where  this  is 
the  case,  equity  will  not  withhold  relief.  Where  the  vendor 
having  become  insane,  the  valuers  could  not  be  nominated, 
it  was  held  not  to  be  an  insurmountable  obstacle  to  relief  ; 
the  court  remarking  that  "  if  there  was  a  valid  and  binding 
contract,  the  supervening  incapacity  of  one  party  cannot 
deprive  the  other  of  the  benefit."' 

§  149.  Material  omissions  from  contract. — It  is  impossi- 
ble to  enumerate  all  of  the  terms  which  ought  to  be  em- 
braced   in    every    contract.     Whether   or   not    an    alleged 


'  Meynell  v.  Surtees,  3  Sm.  &  Gif.,  loi,  113,  per  Vice-Chancellor  Sir.  J. 
Stuart ;  affcl.  i  Jur.  N.  S.,  737. 

'''Jackson  v.  Jackson,  i  Sm.  &  Gif.,  184;  and  see  Paris  Chocolate  Co.  v. 
Crystal  Palace  Co.,  3  lb.,  119,  123. 

■*  Gourlay  v.  Duke  of  Somerset,  19  Ves.,  429.  Contracts  will  not  be  specifi- 
cally enforced,  the  essential  terms  of  which  are  subject  to  the  approval  of  third 
persons.  "There  is  no  instance  of  a  plaintiff  seeking  the  interposition  of  the 
court  and  obtaining  it,  who  has  been  held  entitled  to  have  any  part  of  his  relief 
administered  to  him  through  the  medium  of  a  reference  compulsory  on  the  other 
party.  A  bill  seeking  that,  would  b& p>-o  tanio,  a  bill  to  enforce  the  specific  per- 
formance of  an  agreement  to  refer  to  arbitration  ;  a  species  of  bill  that  has 
never  been  entertained."  Ibid,  approved  in  South  Wales  R.R.  v.  VVythes,  5 
De  G.  M.  &  G.,  880. 

*  Hall  v.  Warren,  9  Ves.,  605. 


§  150.      PRESUMPTION  AS  TO  OMITTED  TERMS.        I95 

agreement  contains  ev^eiy  material  term,  and  every  detail 
requisite  to  constitute  a  complete  contract,  will  of  course 
depend  upon  the  circumstances  of  each  case.  Although 
the  terms  of  the  agreement  are  general,  yet  it  will  be  en- 
forced if  the  law  supplies  the  details  ;  but  not  if  details  are 
omitted  which  the  court  cannot  adopt.'  The  following 
omissions  were  held  to  render  the  contract  incomplete  : 
The  date  at  which  a  lease  was  to  commence  ; ''  the  time 
when  an  increased  rent  was  to  begin  ; '  the  length  of  the 
term  to  be  granted  ; '  an  agreement  for  a  lease  of  mines 
which  did  not  define  the  mineral  area  ; '  a  contract  for  a 
lease  for  lives,  which  neither  named  the  lives,  nor  provided 
for  their  being  named  ; '  silence  in  a  contract  for  a  partner- 
ship as  to  the  amount  of  capital,  and  the  manner  in  which 
it  was  to  be  furnished  ; '  leaving  unsettled,  a  term  as  to  the 
expenses  ;  *  where  an  auctioneer's  receipt,  set  up  as  a  con- 
tract, did  not  refer  to  the  conditions  of  sale,  or  show  the 
proportion  which  the  deposit  was  to  bear  to  the  price." 

§  150.  Presimtptioii  as  to  omitted  terms. — The  silence  of 
an  agreement  as  to  terms  which  may  be  implied  by  legal 
presumption  does  not  render  it  incomplete.'"  If  a  person 
accepts  a  contract  by  which  he  is  to  be  benefited  when  he 
shall  have  done  a  certain  thing  on  or  before  a  certain  day, 

■South  Wales  R.R.  Co.  v.  W^ythes,  5  De  G.  M.  &  G.,  888;  Ridgway  v. 
Whaiton,  6  House  of  Lds.,  285.  See  Nichols  v.  Williams,  22  N.  J.  Eq.,  63  ; 
Tiernan  v.  Gibney,  24  Wis.,  190;  Clark  v.  Clark,  49  Cal.,  586;  Riley  v.  Farns- 
worth,  116  Mass.,  223;  Pickett  v.  Merchants' National  Bank,  32  Ark.,  346. 

^Blore  V.  Sutton,  3  Mer.,  237.  And  see  Cox  v.  Middleton,  2  Drew,  209 ; 
Hersey  v.  Giblett,  18  Beav.,  174. 

^  Lord  Ormond  v.  Anderson,  2  Ba.  &  Be.,  363. 

*  Clinan  v.  Cooke,  i  Sch.  &  Lef.,  22  ;  Gordon  v.  Trevelyan,  i  Price,  64 ;  Mey- 
ers V.  Foibes,  24  Md.,  595. 

^Lancaster  v.  De  Trafford,  31  L.  J.  C,  554. 

"Wheeler  v.  D'Esterre,  2  Dow.,  359.  ''  Downs  v.  Collins,  6  Hare,  41.8. 

"Stratford  v.  Bosworth,  2  V.  &  B.,  341. 

'  Blagden  v.  Bradbear,  12  Ves.,  466. 

^"  It  has  been  held  that  "  as  a  general  rule,  between  vendor  and  purchaser,  the 
latter  must  admit  as  presumptions,  all  matters  which,  in  a  court  of  law,  the 
judge  would  clearly  direct  the  jury  to  presume  ;  but  not  matters  as  to  which  the 
judge  would  leave  it  to  the  jury  to  pronounce  upon  the  effect  of  the  evidence." 
Dart's  V.  &  P.,  162;  Emery  v.  Grocock,  6  Mad.,  54;  Hillary  v.  Waller,  12 
Ves.,  239. 


196        INCOMPLETENESS,  ETC.,  OF  CONTRACT.     §  1 5O. 

such  acceptance  amounts  to  an  agreement  on  his  part  to 
perform  the  act  by  the  time  named.'  An  agreement  to 
sell  land,  is,  in  the  absence  of  anything  expressed  to  the 
contrary,  an  a^jreement  to  sell  the  whole  of  the  vendor's 
interest  therein;'  and  such  interest,  if  not  specified,  will 
be  presumed  to  be  an  estate  in  fee  simple.'  In  the  ab- 
sence of  any  restrictive  expressions,  the  interest  contracted 
to  be  sold  will  be  accompanied  by  all  the  advantages  which 
are  legally  incidental  to  it."  In  a  contract  for  an  under- 
lease it  is  implied  that  the  lessee  is  to  be  subject  to  the 
covenants  in  the  superior  lease.'  When,  however,  a  head 
lease  contains  unusual  covenants  of  which  the  sub-lessee  had 
no  notice,  and  he  has  not  taken  possession  of  the  property, 
it  is  doubtful  whether  the  court  would  decree  specific  per- 

'  Roberts  v.  Marston,  20  Me.,  275.  ^  Bower  v.  Cooper,  2  Hare,  408. 

'  Sug.  V.  &  P.,  339 ;  Hughes  v.  Parker,  8  M.  &  W.,  244  ;  Cattel  v.  Corral],  4 
Y.  &  C.  Ex.,  228,  236.  Where  the  agreement  does  not  call  for  a  deed  with  full 
covenants,  the  vendee  is  only  entitled  to  a  good  and  sufficient  deed  to  convey 
the  title  in  fee  simple.  Lounsberry  v.  Locander,  25  N.  J.  Eq.,  554;  Thayer  v. 
Torrey,  37  N.  J.  Law,  339. 

*  Pope  V.  Garland,  4  Y.  &  C.  Ex.,  403.  In  New  York,  it  is  provided  by  statute 
that  "  ever)'  grant  or  devise  of  real  estate,  or  any  interest  therein,  hereafter  to 
be  executed,  shall  pass  all  the  estate  or  interest  of  the  grantor  or  testator,  unless 
the  intent  to  pass  a  less  estate  or  interest  shall  appear  by  express  terms,  or  be 
necessarily  implied  in  the  terms  of  such  grant."  N.  Y.  Rev.  Sts.,  6th  Ed.,  Vol. 
2,  p.  1 1 30.  "No  covenant  shall  be  implied  in  any  conveyance  of  real  estate, 
whether  such  conveyance  contain  special  covenants  or  not."  lb.,  p.  30.  In 
several  of  the  States  it  is  provided  by  statute,  that  the  words  grant,  bargain, 
and  sale  in  a  conveyance  in  fee,  shall,  unless  specially  restrained,  amount  to  a 
covenant  that  the  grantor  was  seized  of  an  estate  in  fee  freed  from  incumbrances, 
and  for  quiet  enjoyment  as  against  his  acts.  In  Frost  v.  Raymond,  2  Caines,  N. 
Y.,  188,  It  was  held  that  the  words  "  grant,  bargain,  sell,  alien,  and  confirm,"  did 
not  imply  a  covenant  of  title  in  a  conveyance  in  fee;  that  the  word  "grant," 
or  the  word  "  demise,"  implied  a  covenant  of  title  in  a  lease  for  years  ;  and  that 
the  word  "give  "  amounted  to  an  implied  warranty  during  the  life  of  the  feoffor. 
But  this  decision,  though  sound  at  common  law,  is  no  longer  authority  in  New 
York,  under  the  provision  in  the  revised  statutes. 

The  conveyance  of  a  dwelling-house  will  pass  other  erections  so  connected 
with  it  as  to  constitute  one  building.  Hilton  v.  G'lman,  17  Me.,  263  ;  and  where 
land  is  conveyed  with  the  appurtenances,  all  buildings  pass  which  are  attached 
to,  or  connected  with,  the  house,  and  the  close  in  which  the  house  stands.  A 
grant  of  woods  passes  the  land  so  far  as  it  is  necessary  for  the  support  of  the 
trees.  Clap  v.  Draper,  5  Mass.,  268.  The  term  "tenement"  signifies  what- 
ever of  a  permanent  nature  is  capable  of  being  holden,  whether  corporeal  or  in- 
corporeal. The  conveyance  of  the  whole  carries  all  its  parts,  as  v.-ell  at  law  as 
in  equity,  though  some  of  them  were  not  contemplated  by  the  parties.  And  a 
deed  of  all  a  person's  share  and  interest  passes  reversionary,  as  well  as  the 
present  estate.     Sowle  v.  Sowle,  10  Pick.,  376. 

'Cosser  v.  Collinge,  3  My.  &  K.,  283  ;  Smith  v.  Capron,  7  Hare,  185. 


§    T5I.  CONDITION    REBUTTED    OR    WAIVED.  1 97 

formance  ; '  but  otherwise,  if  the  sub-lessee  took  possession 
with  constructive  notice  of  the  covenants."  In  every  con- 
tract for  the  sale  of  real  estate,  there  is  an  implied  under- 
taking to  furnish  a  good  title,  unless  such  an  obligation  is 
expressly  excluded  by  the  terms  of  the  agreement.'  The 
title  to  be  shown  will  depend  upon  the  property  conveyed.* 
The  sale  of  a  lease  includes  the  title  of  the  lessor  ; '  and  an 
agreement  to  renew  is  presumed  to  be  for  the  same  term 
as  the  preceding  lease."  Where  there  is  a  sale  of  real  estate, 
and  the  conditions  of  the  sale  have  been  fully  performed 
on  the  part  of  the  purchaser,  it  will  be  presumed  that  the 
vendor  undertook  to  make  such  conveyance  as  will  render 
the  sale  effectual.'' 

§  151.  Condition  rebutted  or  waived. — There  can  only 
be  a  term  by  legal  presumption  in  the  absence  of  an  express 
provision  in  relation  to  the  same  matter.*  The  language  of 
the  contract  may  therefore  negative  the  existence  of  a  con- 
dition which  would  otherwise  be  implied  ;  as  where  it  limits 
the  title  to  be  made,  or  provides  that  the  purchaser  shall 
merely  take  the  vendor's  interest."     So,   an  implied  term 


1  See  Flight  v.  Barton,  3  My.  &  K.,  282. 

*  Cesser  v.  Collinge,  supra.  Whether  there  is  a  presumption  that  an  execu- 
tory contract  shall  contain  all  the  stipulations  usually  inserted  in  such  contracts, 
query.     Ricketts  v.  Bell,  i  De  G.  &  Sm.,  335. 

*  Doe  D.  Gray  v.  Stanion,  i  M.  &  W.,  695,  701  ;  Worthington  v.  Warrington, 
5  C.  B.,  635;  Holland  v.  Holmes,  14  Fla.,  390.  It  devolves  on  the  vendee,  if 
he  questions  the  title,  to  show  the  defect.  Brown  v.  Bellows,  4  Pick.,  179; 
Breithaupt  v.  Thurmond,  3  Rich.,  216;  Dwight  v.  Cutler,  3  Mich.,  566. 

*  Curling  v.  Flight,  6  Hare,  41  ;  S.  C.  2  Phil.,  613.  An  agreement  or  cove- 
nant to  convey  a  good  title,  does  not  necessarily  entitle  the  covenantee  to  a  war- 
rantee deed  ;  the  right  of  property  and  of  exclusive  possession,  which  consti- 
tutes a  good  title,  being  effectually  vested  in  him  by  a  deed  of  quit  claim. 
Gazley  v.  Price,  16  Johns.,  267  ;  Potter  v.  Tuttle,  22  Conn.,  512  ;  Kyle  v.  Kav- 
anaugh,  103  Mass.,  356.  Contra,  Hoback  v.  Kilgores,  26  Gratt.,  442.  Where 
real  estate  is  sold  and  title  bond  given,  the  vendee  is  liable  for  tax  assessments 
on  the  land  subsequent  to  the  sale.     Hall  v.  Denckia,  28  Ark.,  506. 

^Fildes  V.  Hooker,  2  Mer.,  424  ;  Souter  v.  Drake,  5  B.  &  Ad.,  992  ;  Hall  v. 
Betty,  4  Man.  &  Gr.,  410.  See  Boyd  v.  Schlessinger,  59  N.  Y.,  301.  As  to  an 
agreement  for  the  sale  of  a  contract  I'or  a  lease,  see  Kintrea  v.  Preston,  25  L. 
J.  Exch.,  287. 

*  Price  V.  Assheton,  i  Y.  &  C.  £x„  82.  '  Hoffman  v.  Fett,  39  Cal.,  109. 

*  Galloway  v.  Holmes,  i  Doug.  Mich.,  330. 
®  Freme  v.  Wright,  4  Mad.,  364. 


198  IN'COMPLETENESS,    ETC.,    OF    CONTRACT.  §    1 52. 

may  1)0  rebutted  by  notice'  Where,  for  instance,  a  pur- 
chaser, at  the  time,  or  previous  to  entering  into  the  contract, 
has  notice  that  his  vendor  is  only  a  lessee,  he  cannot  insist 
that  he  contracted  in  fee.'  So,  although  the  contract  be 
silent  in  respect  to  time,  either  party  may,  by  proper  notice, 
bind  the  other  to  complete  within  a  reasonable  specified 
period.'  And  time,  although  originally  of  the  essence  of 
the  contract,  or  afterward  made  imperative  in  equity  by 
notice  may  be  enlarged  or  waived  by  subsequent  agreement, 
or  by  the  acts  of  the  parties.  Thus,  if  the  purchaser  go  on 
with  the  purchase  after  the  time  fixed  by  the  contract  or  by 
his  notice  has  expired,  it  is  a  waiver.'  So,  where  a  pur- 
chaser did  not  demand  possession  until  a  late  hour  at  night 
on  the  day  fixed  for  completion,  and  the  property  consisted 
of  cottages  let  to  w^eekly  tenants,  it  was  held  at  law  to 
amount  to  a  waiver  of  the  condition  as  to  time.' 

§  152.  Iiiiporta7ice  of  certainty  as  to  what  zoas  agreed. — 
A  contract,  to  be  capable  of  specific  enforcement,  must  be 
so  certain  as  not  likely  to  be  misunderstood  by  either  party, 
and  its  terms  be  established  by  satisfactory  proof.  The 
certainty  required  for  the  specific  performance  of  a  contract 
for  the  sale  of  land,  has  reference  both  to  the  description  of 


'  Ogilvie  V.  Foljambe,  3  Men,  53,  64.  -  Cowiej'  v.  Watts,  17  Jur.,  172. 

'  Stewart  v.  Smith,  6  Hare,  222,  note.  Time  may  be  implied  from  the  nature  or 
condition  of  the  subject  matter.  McKay  v.  Carrington,  i  McLean,  59;  Hoyt  v. 
Tuxbury,  70  III.,  391.  Where  it  appears  that  the  parties  have  contracted  that 
time  shall  be  essential  in  a  contract  of  purchase,  a  court  of  equity  will  not  disre- 
gard the  contract  in  order  to  give  effect  to  some  vague  surmise  that  all  the  ven- 
dor intended  to  secure  by  the  contract  was  the  payment  of  the  purchase  money, 
with  interest,  at  some  indefinite  time.  Grey  v.  Tubbs,  43  Cal.,  359.  Spt-'cific 
performance  of  a  contract  to  give  a  mortgage  may  be  enforced,  although  no  time 
is  limited  for  the  payment  of  the  mortgage.  Friebert  v.  Burgess,  11  Md.,  452  ; 
Farrell  v.  Bean,  10  lb.,  233. 

*  King  V.  Wilson,  6  Beav.,  124.  See  Gardner  ex  parte,  4  Y.  &  C.  Ex.,  503  ; 
post,  §  482. 

'  Palmer  v.  Temple,  i  P.  &  D.,  379.  The  question  of  waiver  is  one  of  fact,  i 
Sug.  V.  &  P.,  8th  Ed.,  517;  Burroughs  v.  Oakley,  3  Swanst.,  159;  Paige  v. 
Greeley,  75  111.,  401.  A  contract  has  been  said  to  consist  of  three  classes  of  ele- 
ments :  1st,  those  things  which  are  essential,  without  which  the  contract  cannot 
exist  ;  2d,  those  which  are  of  the  nature,  but  not  of  the  essence,  of  the  contract, 
being  implied  in  it  unless  expressly  excluded,  but  capable  of  being  thus  excluded 
without  subverting  the  contract ;  and  3d,  the  things  that  are  accidental. 


§  152. 


IMPORTANCE    OF    CERTAINTY.  1 99 


the  property  and  the  estate  to  he  conveyed."  Although  a 
contract  may  contain  a  full  recital  of  everything  to  which 
the  parties  agreed,  yet  it  may  be  so  ambiguous  as  to  one  or 
more  of  its  material  terms,  as  to  fail  to  express  the  inten- 
tion of  the  parties  with  requisite  precision.  If  there  be 
strong  doubt  whether  both  parties  to  a  contract  understood 
it  alike,  the  court  will  not  decree  specific  performance."    It 

'  O'Brien  v.  Pentz,  48  Md.,  562 ;  Shriver  v.  Seiss,  49  lb.,  384 ;  Shakspeare  v. 
Markham,  10  Hun.,  311  ;  Cox  v.  Cox,  59  Ala.,  591  ;  ante,  §  144.  The  court 
gives  specific  performance  instead  of  damages  only  when  it  can  by  that  means 
do  more  perfect  and  complete  justice.  An  agreement  which  is  not  so  definite  in 
its  terms  or  in  its  nature  as  to  make  it  certain  that  better  justice  will  be  done  by 
attempting  to  enforce  it  than  by  leaving  the  parties  to  their  remedy  in  damages, 
is  not  one  which  the  court  will  specifically  perfor"_T.  Wilson  v.  Northampton  & 
Banbury  Junction  R.R.  Co.,  L.  R.  9,  Ch.  279.  With  reference  to  contracts  which 
can  be  enforced,  it  is  well  settled  that  "every  agreement  of  this  kind  ought  to 
be  certain,  fair,  and  just  in  all  its  parts.  If  any  ot  these  ingredients  are  wanting 
in  the  case,  equity  will  not  decree  specific  performance."  Buxton  v.  Lister,  3 
Atk.,  386,  per  Lord  Hardwicke.  In  an  early  case,  Lord  Rosslyn  said  :  "  I  lay  it 
down  as  a  general  proposition,  to  which  I  know  no  limitation,  that  all  agreements, 
in  order  to  be  executed  in  this  court,  must  be  certain  and  defined  ;  2dly,  they 
must  be  equal,  and  fair  ;  for  this  court,  unless  they  are  fair,  will  not  execute 
them  ;  and  3dly,  they  must  be  proved  in  such  manner  as  the  law  requires." 
Lord  Walpole  v.  Lord  Orford,  3  Ves.,  420.  And  see  Underwood  v.  Hitchcox,  i 
Ves.  Sen.,  279;  Franks  v.  Martin,  i  Ed.,  309;  Stoddert  v.  Tuck,  5  Md.,  37; 
Smith  V.  Crandall,  20  lb  ,  500  ;  Worthington  v.  Semmes,  38  lb.,  298  ;  Reese  v. 
Reese,  41  lb.,  554.  Clearness  and  certainty  in  a  contract  are  obviously  so  im- 
portant and  fundamental,  it  seems  scarcely  necessary  to  say  very  much  on  the 
subject,  or  to  refer  to  many  authorities.  The  following  cases  will  give  the  student 
some  idea  of  the  manner  in  v/hich  precision  in  agreements  is  regarded  by  the 
courts:  Colson  v.  Thompson,  2  Wheat.,  336;  Carr  v.  Duval,  14  Pet.,  TT  \  Ken- 
dall V.  Almy,  2  Sumn.,  278  ;  Bowea  v.  Waters,  2  Paine,  i  ;  Morrison  v.  Rossig- 
nol,  5  Cal,  64;  Minturn  v.  Baylis,  33  Cal.,  129;  Miller  v.  Cotten,  5  Ga.,  341  ; 
Fitzpatrick  V.  Beatty,  6  111.  (Gilm.),  454;  Burke  v.  Creditors,  9  La.  An.,  57; 
McMurtrie  v.  Bennette,  Harr.  Ch.,  Mich.,  124;  Montgomery  v.  Norris,  2  Miss. 
How.,  499;  Rockwell  v.  Lawrence,  6  N.  J.  Eq.,  2  Halst.,  190;  Lockerson  v. 
Stillwell,  13  N.  J.  Eq.,  2  Beas.,  357  ;  Waters  v.  Brown,  7  J.  J.  Marsh,  123  ;  Good- 
win V.  Lyon,  4  Porter,  Ala.,  297  ;  Madeira  v.  Hopkins,  12  B.  Mon.,  593  ;  Graham 
V.  Call,  5  Munf.,  396  ;  Aday  v.  Echols,  18  Ala.,  353  ;  Sheid  v.  Stamps,  2  Sneed, 
Tenn.,  172  ;  Agard  v.  Valencia,  39  Cal.,  292  ;  Talman  v.  Franklin,  3  Duer,  395  ; 
Lobdell  v.  Lobdell,  36  N.  Y.,  327  ;  Wiswell  v.  Teft,  5  Kans.,  263  ;  Long  v.  Dun- 
can, 10  lb,  294;  Johnson  v.  Johnson,  16  Minn.,  512;  Hardesty  v.  Ric!nrdson, 
44  Md.,  617;  Hycle  V.  Cooper,  13  Rich.  Eq.,  250  ;  McKibbin  v.  Brow  ■,  14  N.  J. 
Eq.,  13;  Welsh  v.  Bayud,  21  lb.,  186;  Huff  v.  Shepard,  58  Mo.,  242  ;  Roundtree 
V.  McLean,  Hempst.,  2.15  ;  Lloyd  v.  Wheatley,  2  Jones,  267;  DuvaU  v.  Myers,  2 
Md.  Ch.,  401;  Wadsworth  v.  Manning,  4  Md.,  59;  Clarke  v.  Rochester, 
etc.,  R.R.  Co.,  18  Barb.,  350  ;  Wright  v.  Wright,  31  Mich.,  380  ;  Odell  v.  Morin, 
5  Oregon,  96  ;  Mehl  v.  Von  der  Wulbeke,  2  Lans.,  267  ;  Foot  v.  Webb,  59  Barb., 
38  ;  Munsell  v.  Loree,  21  Mich.,  491  ;  McClintock  v.  Laing,  22  lb.,  212  ;  Allen 
V.  Webb,  64  111.,  342  ;  Buckmaster  v.  Thompson,  36  N.  Y.,  558  ;  Bowman  v. 
Cunningham,  78  111.,  48  ;  Schmeling  v.  Kriesel,  45  Wis.,  325.  An  objection, 
however,  to  a  contract  on  the  ground  that  it  is  lacking  in  certainty,  will  be  enter- 
tained with  reluctance  when  the  contract  has  been  partly  performed,  and  the 
plaintiff  can  only  be  fully  compensated  by  performance  in  specie. 

^  Coles  V.  Bowne,  10  Paige  Ch.,  526. 


200        INCOMPLETENESS,  ETC.,  OF  CONTRACT.      §  1 53. 

iias  even  been  held  that  where  one  of  them  proves  that  he 
understood  the  agreement  in  a  different  sense  from  the 
other,  the  court  will  decline  to  interfere,  without  consider- 
in<r  whether  or  not  the  defendant's  construction  is  reason- 
able.*  Considerations  as  to  the  certainty  of  a  contract 
sought  to  be  enforced,  arise,  in  a  suit  for  specific  perform- 
ance, which  do  not  present  themselves  in  an  action  at  law 
for  damages  occasioned  by  a  breach.  This  necessarily  fol- 
lows from  the  different  nature  of  the  two  proceedings ;  the 
court  being  asked,  in  the  one  case,  to  uphold  and  carry 
out  an  alleged  agreement,  the  very  existence  of  which  in 
everything  essential  to  show  the  exact  intention  of  the  par- 
ties is  to  be  established  by  proof ;  while,  in  the  other  case, 
the  proposition  to  be  sustained  by  the  plaintiff  is  the  neg- 
ative one  that  the  defendant  has  not  fulfilled,  it  may  be  any 
part  of  the  contract.  No  very  comprehensive  or  definite 
rule  can  be  laid  down  as  to  the  precision  required  in  a  con- 
tract sought  to  be  enforced  in  a  court  of  equity.  It  can 
only  be  said  that  the  certainty  must  be  a  reasonable  one  with 
.  regard  to  the  subject  matter  of  the  agreement,  its  object, 
the  situation  of  the  parties,  and  the  circumstances  under 
which,  and  with  reference  to  which,  the  agreement  was 
made,  so  that  on  a  fair  construction  of  its  terms  there  can 
be  no  good  reason  to  doubt  what  was  intended.' 

§  153.  Immaterial  omissions. — The  following  cases  will 
serve  to  show  what  kind  of  contracts  have  been  specifically 


'  Wycombe  R.R.  Co.  v.  Donning^on  Hospital,  L.  R.  i,  Ch.  268.  Where  the 
court  is  unable,  from  all  the  circumstances  of  a  case,  lo  say  whether  the  minds 
of  the  parties  met  upon  all  the  essential  particulars,  or  if  they  did,  then  cannot 
say  exactly  upon  what  substantial  terms  they  agreed,  or  trace  out  any  practical 
line  where  their  minds  met,  specific  performance  will  be  refused.  Blanchard  v. 
Detroit,  etc.,  R.R.  Co.,  31   Mich.,  44. 

«  Marsh  v.  Milligan,  3  Jur.  N.  S.,  979 ;  Taylor  v.  Williams,  45  Mo.,  80.  The 
principle  of  equity  that  where  doubt  exists,  the  court  will  not  decree  specific  per- 
formance, refers  to  the  terms  of  the  contract,  and  not  to  a  particular  fact  in  the 
case.  Walton  v.  Coulson,  i  McLean,  120.  Where  the  terms  are  uncertain,  and 
a  long  time  has  elapsed  since  the  agreement  was  made,  and  after  the  circum- 
stances under  which  it  was  entered  into  have  materially  changed,  a  court  of 
equity  will  not  interpose.  Pigg  v.  Corder,  12  Leigh,  69.  If,  however,  the  mean- 
ing of  a  contract,  taken  as  a  whole,  is  intelligible  to  the  court,  specific  perform- 
ance will  be  decreed.     Bull  v.  Bull,  4  Wis.,  54. 


§   153-  IMMATERIAL    OMISSIONS.  20I 

enforced,  though  they  were  not  wholly  free  from  ambigu- 
ity. A  memorandum  of  purchase  in  these  words,  "  My 
purchase  of  your  one-half  E.  B.  wharf  and  premises  as 
agreed  on  between  us,"  was  held  sufficiently  definite.  The 
court  remarked  that  "  E.  B.  wharf  "  might  be  as  certain  a 
description  of  locality  as  F.  Street ;  and  then  the  ambiguity 
could  only  arise  if  it  were  shown  that  the  bargainor  had 
more  than  one  house  in  F.  Street,  like  the  two  manors  of 
Dale,  put  by  several  authors.'  So,  a  memorandum  of  a 
contract  for  the  sale  of  land  which  described  the  property 
as  building  lots  on  One  hundred  and  thirty-second  and  One 
hundred  and  thirty-third  Streets,  between  the  Fifth  and 
Sixth  Avenues,  giving  the  numbers  of  the  lots,  and  stating 
that  they  were  Harlem  lots,  resold  because  former  pur- 
chasers failed  to  comply  with  the  terms  of  sale,  was  held 
sufficiently  certain."  The  following  description  of  real  es- 
tate sold  was  held  sufficient  :  "Received,  Newark,  N.  J., 
December  9th,  1874,  of  L.,  the  sum  of  five  hundred'dol- 
lars  in  full  for  title  to  property  held  by  R.  on  Prince  Street 
and  Thirteenth  Avenue,  in  city  of  Newark,  N.  J.,  which 
said  title  is  held  by  said  R.  by  declaration  of  sale  from 
Mayor  and  Common  Council  of  Newark,  and  which  shall 
be  assigned  to  said  L.  within  two  days  from  the  date  here- 
of. H.,  attorney  for  R."'  An  agreement  between  two 
railroad  companies  that  one  might  use  the  line  of  the  other 
to  pass  over  it  with  their  engines,  carriages,  trucks,  and 
carrying  traffic,  was  held  sufficiently  definite,  the  court  re- 
marking that  it  meant,  "  a  reasonable  use,  a  use  consistent 
with  the  proper  enjoyment  of  the  subject  matter,  and  with 
the  rights  of  the  granting  party."*  So,  a  contract  entered 
into  between  a  land-owner  and  a  railroad  company  that  the 
latter  should  make  such  roads,  ways,  and  slips  for  cattle  as 
might  be  necessary,  the  railroad  having  been  constructed, 

'  Barry  v.  Coombe,  i  Pet.,  640.  "  Tallman  v.  Franklin,  14  N.  Y.,  584. 

^  Lewis  V.  Reichy,  27  N.  J.  Eq.,  240. 

"  Gt.  Northern  R.R.  Co.  v.  Manchester.  Sheffield  &  Lincolnshire  R.R.  Co.,  5 
DeG.  &Sm.,  138. 


202        INCOMPLETENESS,  ETC.,  OF  CONTRACT,     §  1 53. 

was  held  capable  of  being  enforced/  An  offer  to  sell  for 
three  thousand  five  hundred  dollars,  one  thousand  dollars 
down,  and  five  hundred  annually  until  the  whole  was  paid, 
the  amount  unpaid  to  be  secured  by  a  mortgage  with  in- 
terest, was  held  to  mean  that  the  land  was  to  be  conveyed 
to  the  purchaser,  who  was  to  give  back  a  mortgage  on  the 
land  sold  for  the  unpaid  purchase  money/  Where  the 
owner  of  a  section  of  land  containing  about  eighty  acres 
agreed  to  convey  fifty-nine  acres  of  it  w^ithout  defining  the 
boundaries,  the  agreement  was  held  sufficiently  certain  to 
authorize  the  court  to  decree  the  execution  of  a  deed.* 
Of  course,  if  a  written  instrument  contain  all  the  facts  of  a 
contract  except  such  as  may  be  properly  proved  by  parol. 


'  Saunderson  v.  Cockermouth  &  Workington  R.R.  Co.,  11  Beav.,  497  ;  Parker 
V.  Taswell,  4  Jur.  N.  S.,  183.  A  covenant  that  "  If  by  the  caving-  of  the  river 
bank  the  land  conveyed  should  become  valueless,  the  covenantor  was  to  suffer 
the  covenantee  to  fix  another  landing,  not  to  exceed  four  acres,  at  any  point  on 
the  river  front  of  the  plantation  which  the  public  interest  might  demand,  and  to 
execute  to  him  a  suitable  conveyance  therefor,  with  a  suitable  road  not  to  exceed 
thirty  feet  in  width  leading  to  the  same ;  it  being  the  intention  of  the  parties 
that  by  the  payment  of  the  sum  of  four  thousand  dollars  the  covenantee  was  to 
have  a  perpetual  landing,  and  to  have  exclusive  control  of  any  landing  on  the 
river  front  of  the  plantation,"  does  not  indicate  any  want  of  definiteness  or  fair- 
ness, or  show  such  hardship  as  should  prevent  it  from  being  specifically  enforced. 
Carson  v.  Percy,  57  Miss.,  97. 

'  Matteson  v.  Scofield,  27  Wis.,  671.  In  a  suit  for  the  specific  performance  of 
a  contract  for  the  sale  of  land,  the  following  instrument,  which  was  objected  to 
as  wanting  in  mutuality  and  certainty,  was  held  valid  and  binding  and  capable 
of  being  enforced  :  "  Received  March  loth,  1874,  from  D.  R.,  the  sum  of  four 
hundred  dollars  on  account  of  his  purchase  of  the  house  and  lot  known  and 
situate  as  No.  164  M.  Street,  J.  C,  sold  to  him  this  day  for  the  sum  of  four 
thousand  dollars.  It  is  agreed  that  if  the  title  of  the  above  property  shall  prove 
unsatisfactory',  that  the  above  sum  shall  be  returned  to  said  D.  R.  J.  G." 
"The  judicial  construction  of  the  foregoing  is,  that  one  party  binds  himself  to 
the  other  to  convey  on  demand  to  be  made  within  a  reasonable  time  for  a  fixed 
price,  and  receives  part  of  the  purchase  money  at  the  making  of  the  contract, 
which  is  to  be  returned  to  the  purchaser  if  the  title  prove  defective.  Further- 
more, the  contract  provides  for  a  delivery  of  the  deed  on  demand  within  a  rea- 
sonable time,  and  a  tender  of  the  balance  of  the  purchase  money."  Reynolds 
V.  O'Neil,  26  N.  J.  Eq.,  223, 

^  Ring  v.  Ashworth,  3  Iowa,  452.  Where  A.  entered  into  an  agreement  with 
B.  to  take  B.  into  partnership  "in  a  certain  lot  in  the  city  of  Jackson,"  B.  to  pay 
one-half  of  the  purchase  money,  "being  eighty-two  and  a  half  dollars,"  at  a  time 
specified,  or  forfeit  his  claim  thereto  if  not  paid  within  three  months,  and  B. 
tendered  the  amount  within  the  appointed  time,  which  A.  relused  to  receive,  it 
was  held  on  a  bill  filed  by  B.  for  specific  performance  that  the  contract  was  not 
void  for  uncertainty,  all  ambiguity  therein  having  been  removed  by  the  answer. 
Cornell  v.  Mulligan,  21  Miss,,  13  Smed,  &  Marsh.,  388. 


§    154-  INSUFFICIENT    DESCRIPTION    OF    LAND.  2O3 

it  is  sufficiently  certain  to  be  enforced  in  equity.'  The 
defendant  purchased  certain  property,  having  previously 
agreed  with  the  plaintiff  that  if  he  made  the  purchase  he 
would  convey  a  portion  of  it  to  the  plaintiff.  There  was 
some  uncertainty  in  the  memorandum  of  agreement  as  to 
the  exact  portion  which  the  plaintiff  was  to  have.  In  a 
suit  by  the  plaintiff  for  specific  performance  of  the  con- 
tract, the  court  directed  a  reference  to  chambers  to  ascer- 
tain vrhat  portion  the  plaintiff  was  entitled  to,  and  decreed 
that  the  defendant  should  convey  such  portion  to  the  plain- 
tiff.' 

§  154.  Insufficient  description  of  land. — It  is  an  estab- 
lished rule  in  equity  that  specific  performance  will  not  be 
decreed  of  an  agreement  for  sale,  whether  verbal  or  writ- 
ten, unless  the  property  to  be  conveyed  is  fixed  w^ith  cer- 
tainty as  to  the  locality  and  description  of  the  land,  or  in 

'  Waring-  v.  Ayres,  40  N.  Y.,  357.  See  Dulany  v.  Rogers,  50  Md.,  524;  Cum- 
mings  V.  Steele,  54  Miss.,  647.  A  description  of  the  property  in  a  covenant  as 
the  land  "whereon  the  vendor  resides,"  or  as  the  "  A.  B.  farm,"  is  sufficient, 
provided  it  can  otherwise  be  sufficiently  identified.  Simmons  v.  Spruill,  3  Jones 
Eq.,  9.  Where  land  was  described  as  "  lying  on  the  south-west  side  of  Black 
River,  adjoining  the  lands  of  William  Haffland  and  Martial,"  the  description 
was  held  sufficient.  Kitchen  v.  Herring,  7  Ired.  Eq.,  190.  The  following  de- 
scription in  a  contract  of  sale  was  held  sufficiently  definite  to  support  a  decree 
for  specific  performance  :  "  Land  lately  bought  by  A.  from  B.,  to  wit :  a  part 
bounded  by  the  section  line  running  from  the  north-east  corner  of  said  tract  to 
the  stake  put  by  C.  on  the  south-east ;  thence  in  a  due  north-east  course  until  it 
strikes  the  main  road  ;  thence  along  the  said  road  till  it  strikes  the  northern 
line  of  said  tract ;  thence  to  the  beginning."  Hooper  v.  Laney,  39  Ala.,  338. 
The  description  in  a  deed  located  the  land  on  the  south  side  of  a  river,  and  also 
referred  to  a  patent  which  placed  the  land  on  the  west  side.  Held  that  such 
discrepancy  was  immaterial,  the  identity  sufficiently  appearing,  and  that  specific 
performance  must  be  decreed.  Newsom  v.  Davis,  20  Texas,  419.  A  contract 
for  the  sale  of  land  which  was  definite  in  all  respects  excepting  that  it  omitted 
to  state  the  town  in  which  the  land  lay,  was  held  sufficiently  certain  to  be  en- 
forced. Robeson  v.  Hoonbaker,  3  N.  J.  Eq.  (2  Green),  60.  And  the  same  was 
held  of  a  contract  for  a  conveyance  of  a  right  of  way  in  which  the  length  ot 
the  way  was  not  stated  with  certainty,  but  the  terminal  points  and  line  of  way 
were  so  fixed  as  to  be  readily  determinable  by  the  government  surveys.  Putt- 
mann  v.  Haltey,  24  Iowa,  425.  So,  where  a  grantor  agreed  to  convey  a  right 
of  way  eighty  feet  wide  over  a  tract  of  land,  and  the  grantee  subsequently  en- 
tered and  laid  out  his  road  with  the  acquiescence  of  the  grantor,  the  contract 
was  held  sufficiently  definite  to  be  enforced  in  equity.  Purinton  v.  Northern 
111.  R.R.  Co.,  46  111.,  297. 

^  Chattock  v.  Muller,  L.  R.  8,  Ch.  D.  177.  In  this  case  the  defendant  had 
purchased  part  of  the  property  as  the  agent  of  the  plaintiff,  and  refused  to  con- 
vey any  portion  of  it  to  him,  in  flagrant  breach  of  duty  and  fraudulent  denial  of 
the  plaintiff's  rights. 


204  INCOMPLETENESS,    ETC.,    OF    CONTRACT.  §   T54. 

such  way  that  it  can  be  ascertained  with  certainty.'  A  con- 
tract which  recited  that  a  specified  sum  was  to  be  paid  at  a 
given  time  "for  one  hundred  and  twenty  acres  of  land  in 
Shannon  Co.,  Missouri,  provided  it  is  not  sold  before  that 
time,"  was  held  too  indefinite  to  be  enforced;''  and  the 
same  was  held  as  to  a  contract  "  for  the  sale  of  the  houses 
in  Smithfield  Street,"  without  any  further  description,  and 
without  disclosing  to  whom  they  belonged  ; '  also  where 
the  language  of  an  agreement  was  as  follows :  "  I  have  this 
day  sold  to  D.  a  certain  tract  of  land  containing  nine  acres 
and  sixty-six  poles  near  the  junction  of  Broad  Street,  Nash- 
ville, and  the  Hillsboro  turnpike,  Davidson  Co.,  Tennessee, 
for  the  sum  of  four  thousand  dollars."^  A  reservation  by 
the  vendor  in  a  contract  for  the  sale  of  real  estate  of  "  the 
necessary  land  for  making  a  railway  through  the  estate  to 
Prince  Town  "  is  void  for  uncertainty,  and  the  contract  is 
incapable  of  being  enforced  on  that  ground.'  Where  A. 
subscribed  "fifty  dollars  and  the  lot  to  build  on"  to  a  sub- 
scription paper  to  build  a  church,  without  stating  the  ex- 
tent or  boundaries  of  the  lot,  and  after  his  death,  the 
church,  a  corporation,  filed  a  bill  for  specific  performance 
against  his  devisee,  it  was  held  that  the  agreement  could 
not  be  enforced,  it  not  being  definite  enough  to  take  it  out 
of  the  statute  of  frauds." 


1  Camden  &  Amboy  R.R.  Co.  v.  Stewart,  18  N.  J.  Eq.,  489  ;  McGuire  v.  Ste- 
vens, 42  Miss.,  724  ;  Whelan  v.  Sullivan,  102  Mass.,  204  ;  Ellis  v.  Deaclman,  4 
Bibb.,  467  ;  Johnson  v.  Craig,  21  Ark.,  533  ;  Jordan  v.  Fay,  40  Me.,  130;  Gra- 
ham v.  Henciren,  5  Munf.,  185  ;  Parish  v.  Koons,  i  Pars.  Eq.  Pa.,  Sel.  Cas.,  79  ; 
Jordon  v.  Deaton,  23  Ark.,  704  ;  Ferris  v.  Irving,  28  Cal.,  645  ;  Millard  v.  Rams- 
dell,  Harr.  Mich.,  373  ;  Shelton  v.  Church,  10  Mo.,  774  ;  Camden,  etc.,  R.R.  Co. 
v.  Stewart,  18  N.  J.  Eq.,  489  ;  Prater  v.  Miller,  3  Hav,'ks,  628  ;  Copps  v.  Holt,  5 
Jones  Eq.,  153  ;  Patrick  v.  Horton,  3  W.  Va.,  23  ;  Taylor  v.  Ashley,  15  Texas, 
50  ;  Brackin  v.  Hambrick,  25  lb.,  408. 

^  Miller  v.  Campbell,  52  Ind.,  125.    See  Lynes  v.  Hayden,  119  Mass.,  482. 

'  Hammer  v.  McEldowney,  46  Pa.  St.,  334. 

^Dobson  v.  Litton,  5  Coldw.  Tenn.,  616. 

^  Pearce  v.  Watts,  L.  R.  20,  Eq.  492. 

'Church  of  the  Advent  v.  Farrow,  7  Rich.  Eq.,  378.  If  the  agreement  does 
not  consist  of  parts  which  are  separable,  certainty  of  description  must,  of  course, 
extend  to  the  entire  property.  Where  a  contract  to  convey  several  tracts  of  land 
did  not  describe  some  of  them  with  sufficient  certainty,  it  was  held  that  such 


§§^55'   ^5^-       OBJFXTIONABLE    FOR    UNCERTAINTY.  205 

§  155.  Failing  to  designate  the  person  zuho  is  to  take. — 
When  there  is  a  want  of  certainty  as  to  whom  a  convey- 
ance or  devise  is  to  be  made,  specific  performance  will  not 
be  decreed.  It  was  held  to  be  an  insuperable  difficulty  in 
the  way  of  maintaining  a  suit  for  the  specific  performance 
of  a  contract  to  convey  or  devise  a  house  and  lot,  that  it 
was  doubtful  who  the  parties  were  to  whom  the  conveyance 
or  devise  was  to  be  made  ; '  and  where  the  owner  of  real 
estate  promised  in  a  general  way  to  establish  a  right  to  pass 
over  it,  but  made  no  specific  contract  with  any  person  per- 
mitting him  to  do  so,  the  court  refused  to  interfere.'  A. 
agreed,  in  consideration  that  B.  would  take  care  of  and 
support  him  for  life,  to  assure  to  B.  and  his  family  A.'s 
house  and  lot  after  death,  to  be  secured  by  a  deed  in  es- 
crow, the  title  to  be  given  to  such  members  of  the  family 
of  B.  as  A.  might  choose.  The  family  of  B.  consisted"  of 
himself,  wife,  and  four  daughters,  and  it  was  held  that  un- 
less A.  prior  to  his  decease  designated  the  particular  mem- 
bers of  the  family  of  B.  who  should  take  the  land  under 
the  contract  by  some  irrevocable  act,  or  by  some  act  which, 
if  not  irrevocable,  was  not  in  fact  revoked  by  him,  specific 
performance  could  not  be  decreed.' 

§  156.  Contracts  objectionable  for  uncertainty. — Numer- 
ous examples  of  contracts  too  uncertain  to  be  enforced  are 
given  in  the  books.  This  was  held  in  relation  to  a  contract 
for  a  lease  wiiich  provided  that  the  house  should  be  put  in 
repair  and  handsomely  decorated  ;  *  also  as  to  a  contract  for 
sale,  reserving  "  the  necessary  land  for  making  a  railway 
through  the  estate  "  ; "  likewise  of  an  agreement  which  left  it 


part  could  not  be  rejected  as  immaterial,  and  a  performance  ordered  of  the  resi- 
due upon  payment.  King  v.  Ruckman,  20  N.  J.  Eq.,  316.  As  to  how  the  lines 
should  be  run  when  a  purchaser  has  his  election  of  a  portion  of  a  tract  of  land, 
"to  be  laid  off  at  either  end,  side,  or  edge,"  see  Owings  v.  Morgan,  4  Bibb., 
274.  As  to  the  quantity  of  land  to  which  it  was  held  a  party  was  entitled,  see 
Ashcraft  v.  Browntield,  7  B.  Mon.,  123. 

'  Stanton  v.  Miller,  58  N.  Y.,  192.  "  Hall  v.  McLeod,  2  Mete.  Ky.,  98. 

^  Stanton  v.  Miller,  supra.  "  Taylor  v.  Portington,  7  De  G.  M.  &  G.,  328. 

*  Pearce  v.  Watts,  L.  R.  20,  Eq.  492. 


206        INCOMPLETENESS,  ETC.,  OF  CONTRACT.     §  156. 

doubtful  whether  or  not  the  purchase  money  included  the 
timber;'  of  a  mortgage  which  referred  to  no  specific  prop- 
erty, where  the  rights  of  third  parties  had  intervened;"  of 
an  agreement  by  a  landlord  to  renew  the  lease  for  as  much 
as  any  one  else  would  pay,  with  option  on  the  part  of  the 
lessee  to  accept  or  refuse  the  lease ; '  of  the  promise  of  a 
landlord  to  reduce  the  rent  in  consequence  of  the  lessened 
value  of  the  premises  caused  by  the  destruction  of  a  bridge, 
the  tenant  having  threatened  to  quit  unless  this  were  done  ;* 
of  an  agreement  to  give  two  mortgages  in  part  payment  for 
the  purchase  of  land,  without  stating  when  they  were  to  be 
paid,  or  at  what  rate  of  interest ; '  so  of  a  contract  for  the 
sale  of  land  for  twenty-five  thousand  dollars,  and  mortgage 
to  remain  at  five  per  cent,  for  five  years;"  also,  where  the 
consideration  named  in  a  contract  for  sale  was,  that  the 
purchaser  should  erect  on  the  land  "a  certain  building";' 
so  of  a  resolution  of  the  board  of  directors  of  a  company 
that  "two  acres  be  sold";'  also  of  an  agreement  for  the 
sale  of  land,  of  which  there  was  no  written  evidence,  except 
a  receipt  for  part  of  the  purchase  money  defming  the  lot 
sold,  but  not  naming  the  price  or  any  other  terms  of  sale.* 
So  an  engagement  by  the  actor  Kean  to  perform  at  a  the- 
tre  was  held  incapable  of  enforcement  by  reason  of  its  un- 
certainty. "  Independently  of  the  difficulty  of  compelling 
a  man  to  act,"  said  the  court,  "there  is  no  time  stated,  and 
it  is  not  stated  in  what  character  he  shall  act ;  and  the  thing 
is  altogether  so  loose,  that  it  is  perfectly  impossible  for  the 
court  to  determine  upon  what  scheme  of  things  Mr.  Kean 
shall  perform  the  agreement"  ;'°  but  the  court  will  endeavor 

'  Reynolds  v.  Waring,  You.,  346.  '  Day  v.  Griffith,  15  Iowa,  104. 

'  Gelston  v.  Sigmund,  27  Md.,  334.     '  Smith  v.  Ankrim,  13  Serg.  &  Rawle,  39. 

^Nichols  V.  Williams,  22  N.  J.  Eq.,  63. 

'  Grace  v.  Denison,  114  Mass.,  16.  '  Mastin  v.  Halley,  61  Mo.,  196. 

*•  Carr  v.  Passaic  Land,  etc.,  Co.,  22  N.  J.  Eq.,  85. 

*  Soles  V.  Hickman,  20  Pa.  St.,  180. 

'»  Kemble  v.  Kean,  6  Sim.,  333.  The  court,  on  the  ground  of  uncertainty,  re- 
fused to  decree  a  spt-cific  performance  of  marriage  articles  prepared  by  a  Jewish 
rabbi  in  an  obscure  manner  said  to  prevail  among  the  German  Jews.  Franks  v. 
Martin,  i  Ed.,  309. 


§    157-       INCONSISTENT    OR    AMBIGUOUS    STIPULATIONS.  20/ 

to  put  a  reasonable  interpretation  upon  vague  expressions 
in  an  agreement/ 

§  157.  Inconsistent  or  ambiguous  stipulations. — If  the 
language  of  the  contract  is  contradictory,  or  there  are  two 
different  agreements  in  relation  to  the  same  subject  matter, 
specific  performance  will  in  general  be  refused.''  Where  an 
agreement  to  take  the  lease  of  a  house  for  a  specified  term, 
at  a  given  rent,  provided  the  house  were  thoroughly  re- 
paired, recited  that  the  drawing-rooms  w^ere  to  be  hand- 
somely decorated  in  accordance  with  the  then  existing  style, 
and  made  some  further  requirements  as  to  painting,  a  bill 
for  specific  performance  was  dismissed  on  the  ground  of 
uncertainty  as  to  repairs.'  So,  a  contract  for  the  purchase 
of  "the  land  required"  for  the  construction  of  a  railroad, 
and  which  contained  provisions  agreed  on  between  the 
agents  of  the  company  and  the  vendor,  as  to  roads,  culverts, 
etc.,  was  held,  on  appeal,  reversing  the  decision  of  the  court 
below,  "too  vague,  too  uncertain,  too  obscure,  to  enable 
the  court  to  act  with  safety  or  propriety."*  The  same  was 
held  of  an  agreement  in  general  terms  for  the  construction 
of  a  railroad  according  to  specifications  to  be  prepared  by 
the  engineer  of  the  company  for  the  time  being ;  ^  and  also 


'  Saunderson  v.  Cockermouth  &  Worthington  R.R.  Co.,  11  Beav.,  497  ;  White 
V.  Hermann,  51  111.,  243.  A  written  contract  in  terms  "I  will  sell  W.  W.  at  any 
time  within  three  months  from  April  first,  eighteen  fifty-seven,  the  premises  (de- 
scribing them)  for  the  sum  of  six  thousand  five  hundred  dollars,  upon  the  terms 
as  specified,"  does  not  bind  the  owner  of  the  land,  and  will  not  be  enforced  in 
equity  by  a  decree  for  its  specific  performance ;  and  parol  evidence  is  not  admis- 
sible to  show  a  verbal  agreement  fixing  the  time  and  manner  in  which  the  con- 
sideration was  to  be  paid.  Wright  v.  Weeks,  3  Bosw.,  373.  On  a  parol  agree- 
ment (perhaps  not  within  the  statute  of  frauds),  where  it  was  doubtful  whether 
the  contract  stipulated  that  the  plaintiff  should  have  immediate  possession,  or  not 
till  a  certain  time  after  payment,  and  the  plaintiff  refused  to  make  payment  un- 
less possession  was  immediately  given,  it  was  held  that  where  the  evidence 
leaves  any  of  the  essential  terms  of  the  contract  doubtful,  specific  performance 
should  not  be  decreed.     Tierman  v.  Libney,  24  Wis,,  190. 

-Callaghan  v.  Callaghan,  8  CI.  &  Fin.,  374.  ^Taylor  v.  Portington,  supra. 

^  Lord  James  Stuart  v.  London  and  Northwestern  R.R.  Co.,  15  Beav.,  513'; 
S.  C,  I  De  G.  M.  &  G.,  721.  In  the  court  below,  the  master  of  the  rolls  held 
that  a  surveyor  going  on  to  the  land  with  the  contract,  could  accurately  ascer- 
tain the  land  to  be  taken,  and  that  therefore  the  terms  of  the  contract  were 
sufficiently  certain. 

^  South  Wales  R.R.  Co.  v.  Wythes,  5  De  G.  M.  &  G.,  880. 


208  INCOMPLETENESS,    ETC.,    OF    CONTRACT.  §   1 58. 

of  an  agreement  to  furnish  accommodation  to  the  plaintiffs 
for  the  sale  of  their  articles  in  the  refreshment  rooms  of  the 
defendants,  and  to  fit  the  rooms  up  for  that  purpose.'  So, 
where  on  the  sale  of  land  it  was  agreed  that,  in  the  event  of 
there  being  coal  or  iron  stone  under  the  land,  a  royalty  of 
a  specified  sum  per  ton  should  be  paid  thereon  by  the  pur- 
chaser, and  that  any  mines  required  to  be  left  by  a  certain 
railroad  company,  should  be  paid  for  out  of  the  money  to 
be  received  from  such  company,  the  court  declined  to  inter- 
fere, inasmuch,  as  if  the  company  bought  the  mines,  the 
contingency  whether  there  was  coal  or  iron  stone  under  the 
land,  would  remain  undetermined  ;  and  as  the  parties  seemed 
to  have  intended  that  there  should  be  a  reservation  of  mines 
to  the  vendor,  and  a  lease  of  them  by  the  vendor  to  the 
purchaser,  there  was  nothing  to  guide  the  court  as  to  the 
stipulations  to  be  contained  in  such  a  lease."  Where  a  con-- 
tract  is  sought  to  be  enforced  by  assignees  or  representatives 
of  contracting  parties,  the  rule  that  uncertainty  will  vitiate 
an  agreement  will  be  applied  with  more  than  ordinary 
stringency." 

§  158.  Contract  improperly  obtained. — A  contract  to  be 
specifically  enforced,  must  not  only  not  be  one-sided,  unjust, 
and  unfair,  but  it  must  not  have  been  obtained  by  unscru- 
pulous means,  or  by  the  concealment  of  material  facts.  It 
may  be  free  from  actual  fraud  or  illegality,  and  not  contain 
elements  of  hardship  or  oppression,  and  yet  be  so  unequal  as 
to  be  incapable  of  specific  enforcement.  Not  that  the  court 
will  nicely  weigh  the  relative  advantages  or  disadvantages 
of  a  bargain  fairly  made ;  but  it  will  consider  whether  the 
agreement  is  such  an  one  as  a  court  seeking  to  do  equity 
ought  to  compel  a  party  to  perform.*     On  the  other  hand, 

1  Paris  Chocolate  Co.  v.  Crystal  Palace  Co.,  3  Sm.  &  Gif.,  119. 

''Williamson  v.  Wooton,  3  Drew,  310.  And  see  Harnett  v.  Yielding,  2  Sch. 
&  Lef.,  549  ;  Tatham  v.  Piatt,  9  Hare,  660 ;  Taylor  v.  Gilbertson,  2  Drew,  391  ; 
Holmes  v.  Eastern  Counties  R.R.  Co.,  3  K.  &  J.,  675;  Sturge  v.  Midland  R.R. 
Co.,  Week.  Rep.,  1857-1858,  233. 

^  Odell  V.  Morin,  5  Oregon,  96. 

*  Mortlock  V.  Duller,  10  Yes.,  292  ;  Wilkn  v.  Willan,  16  lb.,  83  ;  Joynes  v. 
Statham,  3  Atk.,  388  ;  Frisby  v.  Ballance,  4  Scam,,   287  ;  Gasque  v.  Small,  2 


§    159-    CIRCUMSTANCES  TENDING  TO  THROW  DISCREDIT.       209 

specific  performance  of  a  contract  entered  into  under  cir- 
cumstances of  unfairness,  will,  in  general,  be  refused, 
although  such  unfairness  was  unintentional.  Thus,  where, 
at  an  auction  sale,  the  solicitor,  who  was  known  to  be  the 
agent  of  the  vendor,  bid  for  the  purchaser  at  his  instance, 
and  the  bids,  from  the  known  relationship  of  the  solicitor 
to  the  vendor,  were  supposed  to  be  those  of  a  puffer,  and 
so,  hurt  the  sale,  specific  performance  was  refused  at  the 
suit  of  the  purchaser,  though  the  act  of  the  solicitor  was 
inadvertent.'  The  unfairness  of  the  contract  may  appear 
from  its  terms,  or  it  may  be  shown  by  matters  extrinsic, 
and  proved  by  parol  evidence.  Hardship,  inadequacy  or 
failure  of  consideration,  want  of  mutuality,  and  misrepresen- 
tation, fraud,  or  mistake,  which  necessarily  involve  unfair- 
ness, will  be  discussed  in  subsequent  chapters. 

§  159.  Circuinsta7tces  tending  to  throw  discredit  on  trans- 
action.— In  looking  at  a  contract  with  reference  to  its  fair- 
ness, regard  will,  of  course,  first  be  had  to  the  subject  mat- 
ter, terms,  and  the  manner  in  which  it  was  executed,  as  well 
as  to  the  price  as  compared  with  the  real  value  of  the  prop- 
erty ;  and  then  to  the  circumstances  under  which  the  con- 
tract was  entered  into,  particularly  the  character  of  the 
parties  and  the  relation  they  sustain  toward  each  other,  such 
as  the  mental  condition  of  the  person  against  whom  specific 
performance  is  sought,  his  age,  or  poverty,  or  his  acting 
w^ithout  an  attorney  when  incompetent  to  take  care  of  his 


Strobh.  Eq.,  72  ;  Lear  v.  Chouteau,  23  111.,  39  ;  Bowman  v.  Cunningham,  78  lb., 
48;  Union  Coal  Mining  Co.  v.  McAdam,  38  Iowa,  663;  Crane  v.  Decamp,  21 
N.  J.  Eq.,  414;  Reese  v.  Reese,  41  Md.,  554  ;  Godwin  v.  Collins,  4  Houst.  Del., 
28;  Davis  V.  Symonds,  i  Cox,  402  ;  Cabeen  v.  Gordon,  i  Hill  Ch.,  51  ;  Modisett 
V.  Johnson,  2  Blackf.,  431  ;  Edwards  v.  Handley,  Hard.  Ky.,  602  ;  Garnett  v. 
Macon,  6  Call,  Va.,  308  ;  2  Brock,  i8r.  And  see  Walker  v.  Hill,  21  N.J.  Eq., 
191  ;  Merritt  v.  Brown,  lb.,  401. 

1  Twining  v.  Morrice,  2  Bro.  C.  C,  326.  The  equality  required  in  contracts, 
consists  partly  in  acts,  and  partly  in  the  subject  matter  of  the  contract.  As  to 
the  precedent  acts,  equality  is  required  between  the  parties,  both  as  to  the 
knowledge  of  the  thing,  and  the  exercise  of  the  will.  As  to  the  principal  act,  the 
equality  required  is,  that  more  be  not  demanded  than  is  just.  As  to  the  subject 
matter,  the  equality  is  to  be  sought  in  the  absence  of  all  hidden  defects  in  it,  or 
mistakes  as  to  it.     Grotius,  de  jure  Belli  ac  pacis>  Lib.  1 1,.  Ch..  12,  Sec.  3,  et  seq. 

14 


2IO        INCOMPLETENESS,  ETC.,  OF  CONTRACT.     §  1 59. 

own  interests,  etc'  When  there  is  evidence  to  show  that 
there  was  not  a  full,  entire,  and  intelligent  consent  to  the 
contract  by  the  party  against  whom  performance  is  sought, 
or  that  it  was  entered  into  under  circumstances  of  surprise « 
or  want  of  advice,  or  that  one  of  the  parties  was  an  illiter- 
ate person,  or  in  distress,  the  court  will  be  reluctant  to  com- 
pel him  to  perform.'  An  agreement  to  convey  real  estate 
bound  the  vendor  to  sell  the  property  at  a  fixed  price  ;  five 
thousand  dollars  to  be  paid  on  the  delivery  of  the  deed,  and 
the  balance  in  instalments,  without  providing  for  any  mort- 
gage or  security  for  the  purchase  money,  and  without  any 
time  being  designated  for  completion.  The  contract  was 
drawn  by  the  vendee,  and  was  signed  by  the  vendor,  a 
female  not  versed  i;i  such  matters,  in  the  absence  of  any  legal 
adviser,  when  she  had  been  a  long  time  an  invalid,  confined 
to  her  house  by  illness,  in  embarrassed  circumstances,  and  it 
appeared  that  she  was  urged  to  execute  it  by  the  plaintiff. 
Moreover,  she  signed  the  contract  under  a  misapprehension 
as  to  the  payrnxnts,  supposing  that  the  whole  purchase 
money  was  to  be  paid  in  cash.  The  terms  of  the  agreement 
were  not  fair  and  just,  and  the  circumstances  under  which 
it  was  executed  being  such  as  to  render  it  very  doubtful 
whether  it  was  understood  by  the  defendant  in  such  a  way 
as  to  make  a  valid  contract  on  her  part,  or  at  any  rate  so 
clearly  as  to  call  for  a  decree  for  specific  performance,  it 
was  held  that  the  suit  could  not  be  maintained,  although 
the  court  did  not  impute  to  the  purchaser  any  intentional 


iGartside  v.  Isherwood,  i  Bro.  C.  C,  558;  Bell  v.  Howard,  9  Mod.,  302; 
Martin  v.  Mitchell,  2  J.  &  W.,  413,  423;  post,  §  162. 

-  The  term  surprise  is  sometimes  used  as  synonymous  with  that  of  fraud.  But 
the  common  defmition  of  surprise,  is  the  act  of  taking  unawares ;  the  state  oi 
being  taken  unawares  ;  sudden  confusion  or  perplexity.  When  a  court  of  equity 
relieves  on  account  of  surprise,  it  does  so,  upon  the  ground  that  the  party  has 
been  taken  unawares,  that  he  has  acted  without  due  deliberation,  and  under  con- 
fused and  sudden  impressions.  Cases  in  which  the  word  surprise  is  used  in  a 
more  lax  sense,  are  those  where  it  is  deemed  presumptive  of,  or  approaching  to, 
fraud.     See  Story's  Eq.  Juris.,  Sec.  120,  note. 

2  Stanley  v.  Robinson,  i  R.  &  M.,  527;  Helsham  v.  Langley,  i  Y.  &  C.  C.  C, 
175  ;  Stearns  v.  Beckham,  31  Gratt.,  379. 


§159-     CIRCUMSTANCES  TENDING  TO  THROW  DISCREDIT.       2  11 

deception  or  fraud.'  Where  the  owner  of  real  estate  in  a 
city,  with  a  very  imperfect  knowledge  of  the  English  lan- 
guage, was  persuaded  by  a  person  to  sign  a  paper  constitut- 
ing such  person  his  agent  to  sell  for  him  the  land,  which 
was  done  for  a  sum  much  below  its  value,  and  such  person, 
who  was  the  agent  of  the  buyer,  concealed  from  the  owner 
facts  which  would  have  prevented  the  sale  at  the  price 
named,  it  was  held  that  the  contract  thus  entered  into  was 
too  unfair,  unjust,  and  inequitable  to  be  specifically  en- 
forced.^ Where  an  inexperienced  young  man  twenty-one 
years  of  age,  after  a  slight  examination  of  real  estate  insuffi- 
cient to  learn  its  value,  and  without  advice,  entered  into  a 
contract  for  its  purchase  at  an  exorbitant  price,  with  a  per- 
son superior  to  him  in  intelligence,  who  exaggerated  the 
importance  of  the  property,  specific  performance  was  refused 
at  the  suit  of  the  vendor,  although  there  was  no  actual 
fraud.'  In  a  suit  for  the  specific  performance  of  a  contract 
for  the  sale  of  real  estate,  it  appeared  that  the  price  agreed 
upon  was  three  or  four  times  less  than  the  value  of  the 
land  ;  that  the  vendee  was  eager  to  purchase,  and  repeatedly 
visited  the  vendor  for  that  purpose,  at  a  time  when  the 
property  was  under  lease,  so  that  possession  could  not  be 
immediately  obtained ;  that  the  vendor  w^as  a  young,  inexpe- 
rienced man  just  of  age,  who  knew  nothing  of  the  value  of 
the  land,  and  that  he  wished  before  selling  to  consult  a 
friend,  which  he  was  given  no  opportunity  to  do.  The 
court  held  that  although  the  circumstances  did  not  show 
fraud  or  imposition  on  the  part  of  the  vendee,  yet  that  they 
were  such  as  to  indicate  unfairness,  and  that  the  bill  must 
be  dismissed  with  costs.*  Where  in  a  suit  for  specific  per- 
formance, it  appeared  that  the  complainant  had  obtamed  a 
judgment  against  the  defendant  in  an  action  for  unlawfully 
retaining  certain  real  estate  worth  three  hundred  dollars,  to 

'  Cuffv.  Dorland,  55  Barb.,  497.     See  Faike  v.  Gray,  4  Drew,  651. 

-  Fish  V.  Leser,  69  111.,  394.  s  Gasque  v.  Small,  2  Strobh.  Eq.,  72. 

*  Clitherall  V.  Ogilvie,  i  Desaus  Eq.,  250. 


212  INCOMPLETENESS,    ETC.,    OF    CONTRACT.  §   l6o.' 

which  the  defendant  claimed  title,  and  on  which  he  had  a 
growin_£r  crop,  and  having  issued  a  writ  of  restitution,  pro- 
cured the  defendant  to  enter  into  an  agreement  by  which 
he  promised,  in  consideration  of  the  complainant's  note  for 
thirty  dollars,  to  surrender  the  land  at  the  expiration  of 
four  months  and  a  half,  and  to  give  to  the  complainant  his 
bond  for  title,  the  bill  was  dismissed  with  costs ;  the  court 
remarking  that  it  was  evident  that  the  defendant  did  not 
enter  into  the  contract  voluntarily,  but  that  the  writ  of  resti- 
tution was  held  in  ierrorem  over  him,  and  that  it  was  in- 
cumbent on  the  complainant,  who  invoked  the  exercise  of 
the  court's  discretion  in  his  behalf,  to  show  that  he  had  not 
extorted  an  unreasonable  bargain  ;  that  he  had  given  a  just 
compensation  for  the  land,  and  was  equitably  entitled  to  it.' 
Where,  however,  the  agreement  is  not  objectionable  in  it- 
self, the  fact  that  it  was  made  by  a  person  in  insolvent  cir- 
cumstances, or  in  prison,  will  not  prevent  its  being  spe- 
cifically enforced.'' 

§  1 60.  Inadvertent  omission  of  term.  —  If,  in  conse- 
quence of  haste  or  inadv^ertence  in  drawing  or  signing  a 
contract,  a  material  term  is  left  out  which  the  parties  meant 
should  be  inserted,  specific  performance  will  not  be  de- 
creed ;  as  in  such  a  case,  the  instrument  does  not  truly 
represent  their  agreement,  but  something  different.'  Where 
a  contract  for  the  sale  of  land  provided  that  one-half  of  the 


*  Blackwilderv.  Loveless,  21  Ala.,  371. 

*  Lightfoot  V.  Heron,  3  Y.  &  C.  Ex.,  586 ;  Haberdasher's  Co.  v.  Isaac,  3  Jur. 
N.  S.,  611  ;  Brinkley  v.  Hance,  Dru.,  175.  If  process  be  sued  out  maliciously, 
and  without  probable  cause,  though  in  form  regular  and  legal,  to  arrest  and  im- 
prison a  person,  and  a  deed  is  obtained  from  him  wliile  thus  arrested  to  procure 
his  release,  by  reason  of  threats  of  severe  personal  injury,  such  as  death,  illegal 
imprisonment,  or  loss  of  limb,  his  contract  is  void,  though  upon  good  considera- 
tion. But  it  is  otherwise  as  to  a  contract  obtained  by  the  threat  of  a  mere  bat- 
t-ery,  or  of  a  trespass  to  land  or  goods,  it  being  presumed  that  such  a  threat  will 
not  coerce  a  firm  and  prudent  man.  Duress  as  a  defence  to  a  contract,  is,  like 
infancy,  a  personal  privilege.  A  party,  therefore,  cannot  plead  that  he  entered 
into  a  bond  or  other  contract  with  another  on  account  of  duress  upon  the  latter. 
So,  a  person  cannot  set  up  such  a  defence,  unless  the  contract  is  made  with  the 
one  at  whose  suit  or  instigation  he  is  imprisoned,  or  who  makes  the  threats. 

*  Morganthau  v.  White,  i  Sweeny,  395  ;  Harnett  v.  Baker,  L.  R.  20,  Eq.  50. 
See  post,  §  368. 


§  i6i. 


CONCEALMENT    OF    FACTS    WITHOUT    FRAUD.  213 


purchase  money  should  be  paid  by  the  purchaser  on  the  day 
possession  was  given,  and  the  balance  in  annual  instalments 
of  five  hundred  dollars  each,  and  the  customary  provision 
for  securing  the  deferred  payments  was  omitted  through  an 
oversight  due  to  the  hasty  conclusion  of  the  contract, 
caused  by  the  vendee,  but  without  any  improper  design,  it 
was  held  that  as  such  contract,  if  enforced  according  to  its 
terms,  would  work  injustice  between  the  parties,  specific 
performance  would  not  be  decreed,  and  that  the  court  had 
no  power  to  supplement  the  contract  by  prescribing  some 
mode  of  security.' 

§  161.  Concealment  of  facts  without  fraud. — The  im- 
proper suppression  of  a  material  fact  known  to  one  of  the 
parties,  which,  under  the  circumstances,  he  is  bound  in 
conscience  to  disclose,  and  by  which  he  obtains  an  advan- 
tage over  the  other  party  not  embraced  in  the  bargain,  and 
consequently  lacking  the  assent  of  such  other  party,  though 
not  amounting  to  fraud,  by  rendering  the  contract  un- 
equal, w^ill    prevent    its    specific    enforcement ; '  as  where 

'  Godwin  v.  Collins,  4  Houst.  Del.,  28.  If,  in  the  foregoing^  case,  the  pur- 
chaser had  made  his  tirst  payment  and  gone  into  possession  under  the  contract, 
he  would  have  been  protected  on  the  ground  of  part  performance  ;  and  upon 
payment  of  the  balance  of  the  purchase  money  he  could  have  compelled  the 
vendor  to  convey  the  land.  Equity  in  decreeing  specific  performance,  some- 
times imposes  upon  a  party  terms  not  stipulated  for  in  the  contract.  This  has 
been  done  when  performance  having  been  partially  made,  completion  according 
to  the  strict  terms  of  the  contract  has  become  impracticable;  as  through  some 
defect  of  title,  or  outstanding  incumbrance,  or  change  in  the  condition  of  the 
property.  In  such  case,  where  the  parties  have  already  acted  under  the  con- 
tract, and  their  interests  have  become  so  involved  that  they  cannot  be  put  in  the 
position  they  were  in  before,  the  court,  in  order  to  prevent  injustice,  will  com- 
plete the  execution  of  the  contract,  making  such  equitable  adjustment  between 
the  parties  by  way  of  compensation  or  indemnity  as  circumstances  may  admit. 
Davis  V.  Hone,  2  Sch.  &  Lef.,  341  ;  Young  v.  Paul,  2  Stockt.,  402.  When  a 
married  woman  has  attempted  to  convey  her  estate,  but  the  conveyance  is  de- 
fective for  want  of  compliance  with  the  statute,  there  is  not  a  valid  contract 
which  can  be  specifically  enforced.  But  if  she  has  sold  her  land,  received  the 
purchase  money,  and  executed  a  deed  in  accordance  with  the  statute,  and  per- 
fect except  in  the  description. of  the  land,  the  mistake  in  the  description  may  be 
corrected  as  against  her  or  her  heirs.     Hamar  v.  Medsker,  60  Ind.,  413. 

^  Smith  V.  Harrison,  26  L.  J.  Ch  ,  412.  It  has  been  said  that  "  as  a  general 
rule,  each  party  is  bound  in  ever)-  case  to  communicate  to  the  ot'ier  his  knowl- 
edge of  material  facts,  provided  he  knows  the  other  to  be  ignorant  of  them,  and 
they  be  not  open  and  naked,  or  equally  within  the  reach  of  his  observation."  2 
Kent's  Com.,  482.  But  the  foregoing  proposition  has  been  justly  criticised  as 
too  broad,  "  for  many  most  material  facts  may  be  unknown  to  one  party,  and 


214       INCOMPLETENESS,  ETC.,  OF  CONTRACT.      §  l6l. 

it  was  necessary  that  a  wall  should  be  repaired  to  pro- 
tect the  property  from  the  incursions  of  a  river,  and 
this  was  concealed.'  So,  where  a  person  contracted  to  sell 
his  land  to  another  for  a  half-penny  a  square  yard,  which 
amounted  to  about  five  hundred  pounds,  when  the  land 
was  in  reality  worth  two  thousand  pounds,  which,  the  pur- 
chaser knowing,  suppressed  ;  it  was  held  that  the  conceal- 
ment avoided  the  sale."  So,  it  having  bee«k  shown  in  a  suit 
for  the  specific  performance  of  a  contract  to  convey  a  lot 
of  land,  that  the  plaintiff  lived  near  the  lot,  and  was  ac- 
quainted with  its  value,  while  the  defendant  resided  at  a 
distance,  and  did  not  know  what  it  was  worth,  and  that  al- 
though the  plaintiff  made  no  misrepresentations,  yet  that 
he  concealed  his  knowledge  of  the  recent  rise  in  value  of 
the  lot,  and  took  advantage  of  the  defendant's  ignorance, 
and  thus  obtained  from  her  a  contract  to  sell  him  the  lot 
for  but  little  more  than  one-third  its' value,  it  was  held  that 
the  plaintiff    was  not   entitled   to   a  decree,'     Where   the 

known  to  the  other,  and  not  equally  accessible,  or  at  the  moment  within  the 
reach  of  both  ;  and  yet  contracts  not  founded  upon  such  ignorance  on  one  side, 
and  knowledge  on  the  other,  may  be  completely  obligatory."  i  Story's  Eq. 
Juris.,  Sec.  207.  The  relation  sustained  by  one  party  toward  the  other  may  be 
such  as  to  make  it  his  duty  to  disclose  the  facts  ;  as  that  of  a  confidential  ad- 
viser or  attorney  ;  or  where  one  from  a  long  course  of  dealing  has  been  in  the 
habit  of  trusting  implicitly  the  representations  of  the  other;  or  one  has  sources 
and  means  of  information  not  open  to  the  other ;  or  is  so  situated  that  he  is 
compelled  to  depend  upon  the  statements  communicated  to  him.  The  subject 
of  concealment  most  usually  arises  in  suits  for  the  setting  aside  of  contracts  on 
the  ground  of  mistake  or  fraud,  where  it  is  claimed  that  facts  have  been  sup- 
pressed by  a  party  which  he  was  in  duty  bound  to  disclose  to  the  other  party, 
and  in  respect  to  which  he  could  not  innocently  be  silent.  For  a  full  exposition 
of  the  true  rule,  the  reader  is  referred  to  Ch.  10,  post. 

'Shirley  v.  Stratton,  i  Bro.  C.  C,  440.  -  Deane  v.  Rastron,  i  Ans.,  64. 

■' Margraff  v.  Muir,  57  N.  Y.,  155.  In  this  case,  the  referee  before  whom  the 
suit  was  tried,  denied  the  equitable  relief,  but  allowed  the  plaintiff  as  damages 
the  difference  between  the  contract  price  and  the  value  of  the  land,  thus  placing 
him  in  the  position  he  would  have  been  in  if  the  contract  had  been  performed. 
It  was  held  error;  that  the  plaintiff  was  only  entitled  to  nominal  damages,  to- 
gether with  the  sum  paid  by  him  on  the  contract.  The  general  rule  in  New 
York,  in  the  case  of  executory  contracts  for  the  sale  of  land,  is,  that  where  there 
is  a  breach  by  the  vendor,  the  vendee  can  only  recover  nominal  damages,  unless 
he  has  paid  part  of  the  purchase  money,  when  he  can  also  recover  the  purchase 
money  and  interest.  Margraff  v.  Muir,  supra,  per  Earl,  C,  citing  Mack  v. 
Patchin,  42  N.  Y.,  167  ;  Bush  v.  Cole,  28  lb.,  261  ;  Pumpelly  v.  Phelps,  40  N. 
Y.,  60.  But  to  this  rule  there  are  numerous  exceptions,  based  upon  the  wrong- 
ful conduct  of  the  vendor;  as  if  he  is  guilty  of  fraud,  or  can  convey,  but  will 


§    l62.       CONDITION    OF    PARTY    AFFECTING    CAPACITY.  2I5 

parties  were  negotiating  for  the  sale  and  purchase  of  cer- 
tain property,  and  while  the  negotiation  was  still  pending 
between  them,  the  proposed  vendee  took  a  contract  from 
the  agents  of  the  vendor  without  disclosing  it  to  the  ven- 
dor in  any  subsequent  interview,  although  the  parties 
resided  in  the  same  city,  and  a  few  minutes'  walk  would 
have  brought  them  together,  and  the  agents  of  the  vendor 
executed  and  delivered  to  the  vendee  what  purported  to  be 
the  contract  of  the  vendor  for  the  sale  of  the  property, 
which  would  tie  up,  for  an  indefinite  period,  very  valuable 
real  estate  for  a  nominal  sum,  and  they  did  not  require  the 
vendee  to  sign  the  contract,  nor  to  give  any  security  for  its 
performance  oil  his  part,  it  was  held  that  there  was  no 
contract  between  the  parties  so  fairly  obtained,  as  that  a 
court  of  equity  would  enforce  it."  So,  where  the  solicitor 
who  acted  for  both  the  vendor  and  purchaser,  did  not  dis- 
close to  both  of  them  all  the  facts,  so  as  to  place  them  on 
an  equality  in  the  transaction,  specific  performance  w^as  re- 
fused at  the  suit  of  the  purchaser.*  And  where  a  tenant 
obtained  a  renewal  of  his  lease  on  the  surrender  of  the  old 
one,  knowing  and  concealing  the  fact  of  w^hich  the  lessor 
had  no  knowledge,  that  the  person  on  whose  life  the  orig- 
inal lease  depended  was  at  the  point  of  death,  the  court 
refused  to  aid  the  lessee.' 

§  162.  Objection  that  party  was  in  a  condition  affecting 
his  capacity. — Whether  the  fact  that  a  party,  when  he  en- 
tered into  a  contract,  was  under  the  influence  of  spirituous 
liquor  will  be  deemed  such  evidence  of  unfairness  as  to  in- 
duce the  court  to  withhold  a  decree  for  specific  perform- 
ance against  him,  will  depend  upon  his  condition  at  that 

not,  either  from  perverseness,  or  to  secure  a  better  bargain  ;  or  if  he  has  cove- 
nanted to  convey  when  he  knew  he  had  no  authority  to  contract  to  convey ;  or 
where  it  is  in  his  power  to  remedy  a  defect  in  his  title,  and  he  refuses  or  neg- 
lects to  do  so ;  or  when  he  refuses  to  incur  such  reasonable  expenses  as  would 
enable  him  to  fulfil  his  contract,     lb. 

'  Taylor  v.  Merrill,  55  111,  52.     See  Fish  v.  Leser,  69  lb.,  391. 

'  Hesse  v.  Briant,  6  De  G.  M.  &  G.,  623. 

» Ellard  v.  Lord  Llandaff,  i  B.  &  B.,  241. 


2l6  INCOMPLETENESS,    ETC.,    OF    CONTJIACT.  §   1 62. 

time.  Such  a  circumstance  will  not  constitute  a  defence, 
if  there  be  nothing  to  show  that  the  party  acted  without  a 
full  understanding  of  what  he  was  doing.'  But,  on  the 
other  hand,  if  it  be  shown  that  the  defendant  was  in  a 
state  of  complete  intoxication,  the  court  will  not  assist  the 
plaintiff  in  enforcing  the  agreement,  even  where  there  is 
nothing  to  show  that  he  took  advantage  of  the  defendant's 
situation.'  While,  however,  equity  will  be  reluctant  to  aid 
one  who  has  obtained  an  agreement  from  an  intoxicated 

'  Lightfoot  V.  Heron,  3  Y.  &  C.  Ex.,  586 ;  ante,  §§  122,  159. 

''Cooke  V.  Clay  worth,  18  Ves.,  12;  Nagle  v.  Baylor,  3  Dr.  &  W.,  60.  It 
seems  to  have  formerly  been  held  that  the  agreement  of  a  party  was  not  void 
even  in  equity  although  made  by  him  in  a  state  of  complete  intoxication,  unless 
such  intoxication  was  caused  by  the  fraud  or  contrivance  of  the  other  party. 
Cory  V.  Cory,  i  Ves.,  19;  Stockley  v.  Stockley,  i  V.  &  B.,  23.  But  the  contrary 
is  now  well  established,  on  the  ground  that  a  party  in  a  condition  of  absolute 
drunkenness  has  "  no  agreeing  mind."  Pitt  v.  Smith,  3  Camp,  33  ;  Fenton  v. 
Holloway,  i  Stark,  126;  Prentice  v.  Achorn,  2  Paige  Ch.,  30;  Duncan  v.  M'CuI- 
lough,  4  Serg.  &  Rawle,  484  ;  Ford  v.  Hitchcock,  8  Ohio,  214;  Broadwater  v. 
Dame,  10  Mo.,  277;  Harrison  v.  Lemon,  3  Blackf.,  51  ;  Hotchkiss  v.  Forston, 
7  Yerg.,  67;  Calloway  v.  Witherspoon,  5  Ired.  Eq.,  128;  Donelson  v.  Posey,  13 
Ala.,  752;  Lavette  v.  Sage,  27  Conn.,  577.  But  see  Pittinger  v.  Pittinger,  2 
Green  Ch.,  156.  In  Campbell  v.  Spencer,  2  Binney,  129,  which  was  an  action 
of  ejectment  brought  by  the  vendor  of  land  to  compel  the  specific  performance 
of  a  contract  of  sale,  the  court  sustained  the  verdict  of  a  jury  in  favor  of  the 
defendant,  on  the  ground  that  the  circumstances  were  such  as  to  lead  to  the 
suspicion  that  the  defendant,  under  the  influence  of  liquor  while  making  the 
contract  at  a  tavern  with  the  plaintiff,  who  had  sent  for  him  to  come  there, 
although  not  drunk,  had  unadvisedly  sold  his  farm,  on  which  he  had  resided 
many  years,  for  store  goods.  "  Where  the  defendant  happens  to  be  a  man  of 
weak  mind,  or  has  rendered  himself,  by  his  intemperate  habits,  incapable  of 
managing  his  business  and  his  estate  in  a  provident  manner,  and  if  inade- 
quacy of  price  could  be  shown,  it  ought  to  excite  a  jealousy  that  would  induce 
■  a  strict  examination  in  order  to  be  satisfied  that  everything  was  fair  in  obtain- 
ing the  contract.  And  if,  in  addition  to  inadequacy  of  price,  it  should  also 
appear  that  the  defendant  was  hurried  into  the  contract  without  having  time 
sufficient  allowed  him  to  reflect  on  what  he  was  doing,  or  to  consult  with  his 
friends  about  it,  where  it  was  a  matter  of  any  magnitude  ;  or  even  where  the 
price  agreed  to  be  given  to  such  person  might  be  fully  equal  in  value  to  that 
part  of  the  estate  agreed  to  be  sold  when  separated  and  detached  from  the  rest 
of  it,  but  such  separation  would  injure  and  deteriorate  the  value  of  the  residue 
greatly  beyond  the  value  of  the  price  that  was  to  be  received  for  it,  a  specific 
performance  ought  not  to  be  enforced.  In  short,  if  the  contract  of  a  party 
seeking  the  specific  performance  of  a  contract  be  not  perfectly  conscientious, 
honorable,  and  fair,  or  if  the  contract  itself  be  such  that  a  specific  performance 
thereof  would  necessarily  in  its  consequences  to  the  defendant  produce  a  loss 
or  injury  greatly  above  the  value  of  the  price  to  be  received  by  him  under  the 
contract,  and  which  could  not  have  been  readily  foreseen  unless  by  a  man  per- 
fectly competent  to  the  management  of  all  his  concerns,' possessing  at  the  time 
an  unclouded  mind  free  from  embarrassment,  and  capable  of  deliberating  and 
reflecting  maturely  on  what  he  was  about  to  do,  a  specific  performance,  accord- 
ing to  the  established  principles  of  equity,  ought  not  to  be  enforced."  Hender- 
son v.  Hayes,  2  Watts,  148. 


§§  163,  164.     IN  CASE  OF  BREACH  OF  TRUST.         21/ 

person,  it  will  be  equally  unwilling,  in  the  absence  of  fraud 
or  imposition,  to  help  the  latter  get  rid  of  his  contract  on 
the  orround  that  he  was  intoxicated  at  the  time.'  Where  a 
third  person,  who  had  obtained  a  subsequent  conveyance 
of  the  property,  was  the  substantial  defendant,  he  was  not 
permitted  to  set  up  this  defence.' 

§  163.  W/iere  contract  may  affect  others  mjuriotisly. — 
The  rights  of  persons  not  parties  to  the  contract  of  which 
specific  performance  is  sought  are  equitable  considerations 
to  be  looked  at  by  the  court,  although  such  rights  vested 
subsequent  to  the  making  of  the  contract.' 

§  164.  I71  case  of  breach  of  trust. — A  contract  of  sale 
made  by  trustees  in  breach  of  their  trust  will  not  be  specifi- 
cally enforced,  because  such  a  contract  \vould  not  only  be 
unfair  and  unlawful,  but  would  render  the  trustees  liable  to 
prosecution  if  they  were  compelled  to  execute  it.*  Where, 
in  a  contract  for  the  sale  of  trust  property,  it  was  agreed 


•  Rich  V.  Sydenham,  i  Ch.  Cas.,  202  ;  Wigglesworth  v.  Steers,  i  Hen.  &  Munf., 
70 ;  White  v.  Cox,  3  Hayw.,  82  ;  Taylor  v.  Patrick,  i  Bibb.,  68  ;  Campbell  v. 
Ketcham,  lb.,  406. 

-  Shaw  V.  Mackray,  i  Sm.  &  G.,  537. 

2  Wedgwood  v.  Adams,  6  Beav.,  600  ;  Anthony  v.  Leftwitch,  3  Rand,  238 ; 
Towan  v.  Barrington,  Brightly  (Pa.),  253  ;  Patterson  v.  Martz,  8  Watts,  374  ; 
Johnson  v.  Hubbell,  2  Stoct.  Ch.,  332  ;  Curran  v.  Holyoke  Water  Power  Co., 
116  Mass.,  90.  Mr.  Fry  (Specif  Perform.,  112,  113),  gives  the  following  ex- 
amples under  the  system  of  family  settlements  prevailing  in  England  :  Where 
an  estate  was  settled  in  strict  settlement,  giving  to  the  settlor  a  life  estate  and 
an  ultimate  remainder,  and  the  tenant  for  life  contracted  for  the  sale  of  the  fee, 
the  purchaser  was  not  permitted  to  take  the  interest  of  the  tenant  for  life  with 
compensation,  for  tlie  reason  that  a  father  and  a  stranger  would  be  likely  to  use 
an  estate  without  impeachment  of  waste  in  a  different  way,  and  that  conse- 
quently the  sale  might  prov^e  injurious  to  those  in  remainder.  Thomas  v.  Der- 
ing,  I  Ke.,  729.  So,  a  settler  in  a  voluntary  settlement  cannot  maintain  a  suit 
for  the  sale  of  the  estate  so  as  to  override  the  settlement  and  thus  prejudice  the 
interests  of  the  parties  claiming  under  it.     Johnson  v.  Legard,  T.  &  R.,  281. 

*  Mortlock  V.  BuUer,  10  Ves.,  292  ;  Bridger  v.  Rice,  i  J.  &  W.,  74;  Wood  v. 
Richardson,  4  Beav.,  174 ;  Maw  v.  Topham,  19  lb.,  576  ;  Hill  v.  Buckley,  17  Ves., 
394 ;  Neale  v.  Mackenzie,  i  Ke.,  474.  The  person  who  seeks  specific  perform- 
ance must  show  that  "  he  does  not  call  upon  the  other  party  to  do  an  act  which 
he  is  not  lawfully  competent  to  do  ;  for  if  he  does,  a  consequence  is  produced 
that  quite  passes  by  the  object  of  the  court  in  exercising  the  jurisdiction,  which 
is,  to  do  more  complete  justice."  Lord  Redesdale  in  Harnett  w  Yielding,  2  Sch. 
&  Lef.,  553.  Where  a  trustee  has  authority  to  sell  and  reinvest  the  trust  prop- 
erty whenever,  in  his  judgment,  the  purchase  money  can  be  laid  out  advan- 
tageously for  the  cestui  que  trust,  the  sale  will  be  void  unless  he  acts  in  the  mat- 
ter fairly  and  honestly.     Wormley  v.  Wormley,  8  Wheat.,  421. 


2l8        INCOMPLETENESS,  ETC.,  OF  CONTRACT.     §  164. 

that  the  purchaser  should  retain,  out  of  the  purchase  money, 
the  amount  of  a  private  debt  due  to  him  from  the  trustee, 
a  demurrer  to  the  bill  for  want  of  equity  was  sustained  on 
the  ground  that  the  agreement  constituted  a  breach  of  trust.* 
And  even  though  the  contract  do  not  amount  to  a  breach 
of  trust,  but  be  merely  unbusiness-like,  the  court  will  be  re- 
luctant to  enforce  it,  unless  it  is  shown  that  the  price  is  fully 
equal  to  the  value  of  the  property.'     So,  "  if  trustees  fail  in 
reasonable  diligence — if  they  contract  under  circumstances 
of  haste  and  improvidence — if  they  make  the  sale  with  a 
view  to  advance  the  particular  purposes  of  one  party  inter- 
ested in  the  execution  of  the  trust  at  the  expense  of  another 
party — a  court  of  equity  will  not  enforce  specific  perform- 
ance of  the  contract,  however  fair  and  justifiable  the  con- 
duct of  the  purchaser  may  have  been.     The  remedy  of  the 
law  is  open  to  such  a  purchaser ;  but  he  has  no  claim  to 
the  assistance  of  the  court  of  equity." '     So,  specific  per- 
formance will  be  refused  when  trustees  enter  into  an  agree- 
ment in  excess  of  their  authority."    And  where  trustees  for 
sale   misrepresented   the  value  of  the  property  when  they 
had  it  in  their  power  to  estimate  it  correctly,  and  the  con- 
ditions of  sale  contained  stipulations  for  compensation  on 
either  side,   a  decree  for  compensation  was  reversed,  the 
court  refusing  to  carry  out  a  condition  which  would  injure 
the  cestui  que  trust  through  the  neglect  of  the  trustees.' 
But  a  contract  for  sale  entered  into  by  the  trustees  of  a 
road,  was  enforced,  although  the  agreement  was  made  in 
forgetfulness  of   a  right  of    preemption,  and  the  trustees 
might  be  liable  to  an  action  for  damages.'     A  contract  en- 


'  Thompson  v.  Blackstone,  6  Beav.,  470. 

"  Goodwin  v.  Fielding,  4  De  G.  M.  &  G.,  90. 

'  Ord  V.  Noel,  5  Mad.,  438,  per  Sir  John  Leach,  V.  C. 

*  Harnett  v.  Yielding,  supra  ;  Byrne  v.  Acton,  i  Bro.  P.  C,  186 ;  Bellinger  v. 
Blagrave,  i  De  G.  &  S.,  63. 

'  White  V.  Cuddon,  8  CI.  &  Fin.,  766,  overruling  Cuddon  v.  Cartwright,  4  Y, 
&  C.  Ex.,  25.  And  see  Sneesby  v.  Thorne,  i  Jur.  N.  S.,  536 ;  S.  C.  7,  De  G.  M. 
&  G.,  399;  Margram  v.  Archbold,  i  Dow,  107. 

°  Barrett  v.  Ring,  2  Sm.  &  Gif.,  43, 


§    165.  SUBSEQUENT    CHANGED    CIRCUMSTANCES.  219 

tered  into  by  an  agent  in  gross  breach  of  trust  toward  his 
principal,  will  not  be  enforced;'  nor  an  agreement  made  by 
railway  directors  in  breach  of  trust,  to  the  prejudice  of  the 
stockholders  at  the  instance  of  the  other  party  who  had 
knowledge  of  the  circumstances/  The  doctrine  under  con- 
sideration is  applicable  to  assignees  in  bankruptcy,  and  all 
other  persons  holding  positions  of  trust  and  confidence.  A 
contract  for  sale  entered  into  by  assignees  in  bankruptcy 
where  the  purchaser  must  have  known  that  the  vendors 
were  deahng  without  sufficient  knowledge,  and  that  the 
creditors  were  equally  ignorant,  was  set  aside  on  the  ground 
of  the  breach  of  trust  of  the  assignees.' 

§  165.  Subsequent  changed  circzmistances. — As  a  rule, 
subject  to  exceptions,  if  the  contract  was  fair  when  it  w^as 
entered  into,  it  will  not  be  deemed  otherwise,  in  conse- 
quence of  the  happening  of  unforeseen  and  unexpected 
events  afterward.*  ''  The  question  in  such  cases  always  is, 
was  the  contract  at  the  time  it  was  made  a  reasonable  and 
fair  one  ?  If  such  were  the  fact,  the  parties  are  considered 
as  having  taken  upon  themselves  the  risk  of  subsequent 
fluctuations  in  the  value  of  the  property,  and  such  fluctua- 
tions are  not  allowed  to  prevent  its  specific  enforcement."* 

'  Mortlock  V.  Buller,  10  Ves.,  292,  313. 

-  Shrewsbury  &  Birming-ham  R.R.  Co.  v.  London  &  Northwestern  R.R.  Co., 
4  De  G.  M.  &  G.,  115  ;  Affd.  6  House  of  Lds.,  113. 

^  Turner  V.  Harvey,  Jac,  169. 

^  Low  V.  Treadwell,  12  Me.,  441.  Mr.  Story  states  an  exception  to  the  rule 
very  broadly  when  he  says  that  "  If,  in  fact,  the  character  and  condition  of  the 
property  to  which  the  contract  is  attached,  have  been  so  altered  that  the  terms 
and  restrictions  of  it  are  no  longer  applicable  to  the  existing-  state  of  things  ;  in 
such  cases,  courts  of  equity  will  not  grant  any  relief,  but  will  leave  the  parties  to 
their  remedy  at  law."  Story's  Eq.  Juris.,  Sec.  750  ;  referring  to  Duke  of  Bed- 
ford V.  British  Museum,  2  Mylne  &  Keen,  552.  See  Payne  v.  Meller,  6  Ves.,  349; 
Pratt  V.  Law,  9  Cranch,  456;  Brashier  v.  Gratz,  6  Wheat.,  528;  Mechanic's 
Bank  of  Alexandria  v.  Lynn,  i  Peters,  383;  Taylor  v.  Longworth,  14  lb.,  173. 

*  Field,  J.,  in  Willard  v.  Tayloe,  8  Wall,  557.  The  foregoing  case  is  some- 
times referred  to  as  having  departed  from  the  general  rule.  It  seems,  however, 
that  the  contract  was  enforced  according  to  the  presumed  intention  of  the  par- 
ties at  the  time  it  was  entered  into  ;  that  is,  that  the  consideration  should  be  paid 
in  the  standard  of  values  which  existed  at  that  time,  and  not  in  a  depreciated 
currency  subsequently  created,  which  neither  party  could  have  contemplated.  It 
was  a  suit  for  the  specific  performance  of  a  covenant  contained  in  a  lease  of 
certain  real  estate  to  the  complainant,  in  which  it  was  stipulated  that  the  com- 


220       INCOMPLETENESS,  ETC.,  OF  CONTRACT.      §  1 66. 

The  rule  is  especially,  if  not  universally,  applicable  to  "  con- 
tracts which  do  not  look  to  a  completed  performance 
within  a  defined  and  reasonable  time,  but  contemplate  a 
continuous  performance  extending  through  an  indefinite 
number  of  years,  or  perpetually.'"  But  if  the  subsequent 
changed  circumstances  and  conditions,  which  are  objected 
to  by  the  defendant  as  unfair,  were  caused  by  the  plaintiff's 
wrongful  acts  or  omissions,  it  will  be  a  ground  for  refusing 
to  enforce  specific  performance.'' 

§  1 66.  Sales  of  doubtfzd  rigJits.—K  contract  may  be 
fair,  and  therefore  binding,  when  the  uncertainty  is  either 
in  some  future  and  doubtful  event,  or  when  something  past, 
and  therefore  in  itself  certain,  is  subsequently  ascertained.' 
Instances  in  which  property  sold,  the  extent  and  value  of 
which  are  uncertain,  is  described  in  general  terms,  and  those 
in  which  the  owner  of  property  sells  such  unascertained  in- 
terest in  it  as  he  has,  and  the  purchaser's  expectations  are 

plainant  should  have  the  option  of  purchasing  the  property  at  any  time  before  the 
expiration  of  the  lease.  It  appeared  that  wlien  the  lease  was  made,  gold  and 
silver  were  the  standard  of  values,  but  that  subsequently  notes  ol  the  United 
States  were  made  by  act  of  Congress  a  legal  tender  for  private  debts  ;  that  such 
notes  had  become  greatly  depreciated,  and  the  value  of  the  property  very  much 
enhanced,  and  that' the  complainant  offered  in  payment  legal  tender  notes,  which 
were  refused  by  the  defendant,  and  payment  in  coin  demanded.  It  was  held  that 
as  at  the  tinie  the  proposition  to  sell  embodied  in  the  covenant  of  the  lease  was 
made,  a  substitution  of  notes  for  coin  could  not  have  been  contemplated  by  the 
parties,  and  it  was  not  reasonable  to  suppose  that  if  it  had  been,  the  covenant 
would  have  been  inserted  in  the  lease  without  some  provision  against  the  substi- 
tution, the  complainant  was  only  entitled  to  a  decree  upon  payment  of  the  stipu- 
lated price  in  gold  and  silver. 

'  Marble  Co.  v.  Ripley,  lo  Wall,  330,  per  Strong,  J. 

""  Stone  V.  Pratt,  25  111.,  25. 

2  Stapilton  v.  Stapilton,  i  Atk.,  2  ;  Heap  v.  Tonge,  9  Hare,  90.  The  following 
decisions  concerning  contracts  depending  upon  future  events  wholly  contingent 
and  equally  doubtful  and  uncertain  to  both  parties,  cited  by  Mr.  Fry,  Specif. 
Perform.,  107,  ic8,  very  well  illustrate  the  above  proposition.  In  Parker  v. 
Palmer,  l  Cas.  in  Ch.,  42,  decided  in  the  14th  year  of  Chas.  II.,  it  appeared  that 
Parker,  during  the  commonwealth,  had  sold  a  lease  which  he  had  from  a  dean 
and  chapter  for  three  lives  to  Palmer,  for  four  thousand  three  hundred  and 
twenty  pounds,  and  that  Palmer  afterward  agreed  that  if  Parker  would  throw 
off  four  hundred  and  twenty  pounds,  he  would  reconvey  the  lease  whenever  the 
king,  dean,  and  chapter  were  restored,  and  that  the  abatement  was  made.  The 
king  and  church  having  been  restored,  this  suit  was  brought  by  the  vendor  for 
a  reconveyance,  which  was  decreed  accordingly.  So,  an  agreement  to  sell  for 
twenty  pounds  an  allotment  thereafter  to  be  made  to  the  vendor  under  an  en- 
closure, was  specifically  enforced,  although  the  allotment  turned  out  to  be  worth 
two  hundred  pounds.     Anon,  cited  in  Cooth  v.  Jackson,  6  Ves.,  24. 


§    167.  KNOWLEDGE    OF    PARTY.  221 

disappointed,  fall  within  this  principle/  Where  a  member 
of  a  firm  entered  into  a  contract  without  fraud  or  conceal- 
ment with  the  retiring  partner  to  pay  him  two  thousand 
pounds  for  his  share  in  the  concern,  the  agreement  was  up- 
held, though  the  parties  both  knew  that  the  firm  was  in- 
solvent. '*  Suppose,"  said  the  court,  "  the  case  of  a  trade 
attended  with  great  risk,  the  partner  despairing,  the  other 
partner  confident  and  willing  to  buy  the  share  of  his  part- 
ner, and  to  give  him  two  thousand  pounds  for  it ;  on  what 
possible  ground  could  the  contract  be  invalidated  ?  " '' 

§  167.  Knowledge  of  party  giving  him  an  tmf air  advan- 
tage.— But  to  render  a  contract  capable  of  being  specifically 
enforced  notwithstanding  its  uncertainty  at  the  time  it  was 
entered  into,  the  events  which  are  afterward  made  certain 
must  have  been  doubtful  and  unknown  to  both  parties.  If 
one  of  them  had  knowledge  of  such  events,  he  possessed 
an  unfair  advantage,  and  the  contract  will  not  be  enforced 
against  the  other  who  was  ignorant  of  them,  though  the 
terms  of  the  agreement  were  such  as  to  put  him  on  his 
guard.  A  vendor  made  no  representations  as  to  the  value 
of  property  sold,  which  was  described  as  the  interest,  if 
any,  of  A.  B.  in  certain  stock  and  also  in  a  lease  on  which 
there  was  a  lien  of  one  hundred  pounds  ;  and  it  was  agreed 
that  even  if  it  should  turn  out  that  A.  B.  had  no  interest  in 
the  premises,  the  purchaser  should  have  no  remedy  against 
the  vendor  to  compel  him  to  refund.  The  purchase  money, 
amounting  to  one  hundred  and  fifty  pounds,  having  been 
paid,  it  appeared  that  in  consequence  of  the  state  of  certain 
partnership  accounts  which  was  known  to  the  vendor,  but 
which  the  purchaser  had  no  means  of  ascertaining,  the  in- 
terest sold  was  of  no  value,  and  that  the  sale  was  in  fact  had 
in  order  to  enable  certain  proceedings  to  be  taken  against 
the  separate  estate  of  A.  B.  On  a  bill  filed  by  the  purchaser 
against  the  vendor,  the  sale  was  set  aside  with  costs.'     A 

'  See  Basendale  v.  Scale,  19  Beav.,  60T. 

^Peake  ex  parte,  i  Mad.,  346.     See  Haywood  v.  Cope,  4  Jur.  N.  S.,  227. 

*  Smith  V.  Harrison,  26  L.  J.  Ch.,  412. 


222        INCOMPLETENESS,  ETC.,  OF  CONTRACT.     §  1 67. 

contract  for  sale  will  not,  as  a  matter  of  course,  be  enforced, 
though  it  expressed  an  uncertainty  as  to  the  nature  and 
extent  of  the  subject  matter,  if  the  latter  is  subsequently 
ascertained  to  be  wholly  different  from  anything  understood 
or  contemplated  by  the  parties ;  since  in  such  a  case,  the 
court  would  be  asked  to  compel  the  conveyance  of  what 
neither  party  intended  to  sell  or  buy.  Thus,  in  a  contract 
between  A.  and  13.  for  the  sale  of  a  manor,  it  was  provided 
that  the  vendor  should  not  be  obliged  to  define  its  boundary. 
It  was  afterward  ascertained  that  the  manor  comprised 
a  valuable  property  not  before  known  to  either  party  to 
belong  to  it.  A  bill  for  specific  performance  filed  by  the 
purchaser,  who  had  previously  sought  to  repudiate  the  con- 
tract, was  dismissed,  but  without  costs.' 

'  Baxendale  v.  Scale,  19  Beav.,  601. 


CHAPTER  IV. 

HARDSHIP    OF    CONTRACT. 

168.  Judged  according  to  the  circumstances  under  which  it  occurs, 

169.  Specific  performance  not  decreed  when  it  would  operate  with  unreason- 

able hardship. 

170.  Mere  hardship  not  a  defence. 

171.  In  the  case  of  a  contract  with  a  corporation. 

172.  When  the  question  is  as  to  the  construction  of  a  contract. 

•'     173.  Change  of  circumstances  where  contract  was  reasonable  when  entered 
into. 

174.  Where  the  hardship  is  attributable  to  the  defendant. 

175.  In  case  of  substantial  performance  and  speculative  er-.gagements. 

176.  Where    the    contract    becomes  unreasonable  through  the  fault  of  the 

plaintiff. 

177.  Effect  of  a  liability  to  forfeiture. 

178.  In  case  of  contracts  for  the  sale  of  reversionary  interests. 

§  168.  Degree  of  reqziired  to  be  shown. — Having  treated 
in  the  preceding  chapter  of  unfairness  in  contracts  as  a  de- 
fence to  suits  for  their  specific  performance,  we  now  pro- 
ceed to  speak  of  hardship  or  oppression,  which,  although 
necessarily  involving  the  element  of  unfairness,  has  a  wider 
application,  for  the  reason  that  hardship  may  be  either  in 
the  agreement  itself,  or  arise  from  circumstances  exterior 
and  subsequent  to  it.  Where  the  hardship  appears  from 
the  very  terms  of  the  contract,  a  greater  degree  of  hardship 
must  be  established  to  constitute  a  defence  than  when  the 
oppressiveness  flows  from  something  collateral  to  the  con- 
tract, and,  so  far,  concealed  and  latent ;  since,  in  the  for- 
mer case,  the  parties  will  be  presumed  to  have  contem- 
plated all  the  consequences  of  their  agreement ;  while  in 
the  latter  no  such  presumption  arises. 

§  169.  Under  zvhat  circumstances  a  defence. — A  defend- 
ant will  in  general  succeed  in  procuring  the  dismissal  of  a 
suit  for  specific  performance  if  he  can  convince  the  court 
that  the  exercise   of  its  jurisdiction  in  granting  the  plain- 


2  24  HARDSHIP    OF    CONTRACT.  §    1 69. 

tiff's  prayer  for  relief  would  operate  with  unreasonable 
hardship  upon  him  under  the  eircumstances  of  the  case  ;'  it 
being  one  of  the  established  principles  of  courts  of  equity 
not  to  entertain  a  bill  for  the  specific  performance  of  any 
agreement  when  it  is  doubtful  whether  the  court  may  not 
thereby  become  the  instrument  of  injustice,  or  deprive  a 
person  of  rights  which  he  is  fairly  entitled  to  have  pro- 
tected ; "  as,  where  a  contract  for  service,  by  which  a  young 
man  put  himself  in  the  power  of  traders,  by  whom  he  was 
employed  as  a  traveler  and  clerk,  was  so  drawn,  that  if, 
from  illness  or  any  other  cause  over  which  he  could  have 
no  control,  he  might  become  incapable  of  serving  his  em- 
ployers, they'had  the  option  either  to  discharge  him,  or  dis- 
continue the  payment  of  his  salary  and  insist  that  during 
the  balance  of  the  time  for  which  he  was  hired  he  should 
not  engage  in  the  service  of  any  other  person.  "  Nothing," 
it  was  remarked,  "  could  be    more  harsh  toward  a  young 

'Gould  V.  Kemp,  2  My.  &  K.,  308;  Hylton  v.  Briscoe,  2  Yes.  Sen.,  304; 
W^ood  V.  Griffith,  i  Swanst.,  54  ;  Kimberley  v.  Jennings,  6  Sim.,  340  ;  Talbot  v. 
Ford,  13  lb.,  173  ;  Seymour  v.  Delancy,  3  Cowen,  485  ;  Cannaday  v.  Shepard, 
2  Jones  Eq.,  224  ;  Barrett  v.  Spratt,  4  Ired.  Eq.,  171  ;  Huntington  v.  Rogers,  9 
Ohio  .St.,  511  ;  Reed  v.  Rudman,  5  Ind.,  409  ;  King  v.  Hamilton,  4  Pet.,  311  ; 
Eastman  v.  Plumer,  46  N.  H.,  464  ;  Chambers  v.  Livermore,  15  Mich.,  381  ;  So- 
ciety, etc.,  V.  Butler,  12  N.  J.  Eq.,  498;  Margrafv.  Muir,  57  N.  Y.,  155.  Biit 
where  a  contract  has  been  executed  by  the  parties,  equity  will  not  declare  it 
void  on  the  sole  ground  that  it  is  unconscionable,  except  in  the  case  of  an  heir- 
expectant.     Davidson  v.  Little,  22  Pa.  St.,  245. 

■  Tobey  v.  County  of  Bristol,  3  Story,  800 ;  Andrews  v.  Andrew^s,  28  Ala., 
432  ;  Thompson  v.  Tod,  Pet.  C.  C,  380  ;  Gould  v.  Womack,  2  Ala.,  83  ;  Ellis 
V.  Burden,  i  Ala.  Sel.  Cas.,  458;  Lucas  v.  Burnett,  i  Greene,  Iowa,  510;  Grif- 
fith V.  Frederick  County  Bank,  6  Gill  &  Johns.,  424  ;  Waters  v.  Howard,  i  Md. 
Ch.,  112;  Smith  v.  Crandall,  20  Md.,  482;  Daniel  v.  Eraser,  40  Miss.,  507; 
Rodman  v.  Zilley,  i  N.  J.  Eq.,  320  ;  Stoutenburgh  v.  Tompkins,  9  N.  J.  Eq., 
332  ;  McWhorter  v.  McMahan,  i  Clarke,  N  Y.,  400  ;  Leigh  v.  Crump,  i  Ired. 
Eq.,  299  ;  Farr  v.  Glading,  i  Phila.,  372 ;  Hall  v.  Ross,  3  Hayw.,  200 ;  Rice  v. 
Rawlings,  Meigs,  496 ;  Eastland  v.  Vanarsdel,  3  Bibb.,  274 ;  Wingate  v.  Fry, 
Wright,  105  ;  McCarty  v.  Kyle,  4  Coldw.  Tenn.,  348 ;  Smith  v.  Wood,  12  Wis., 
382.  In  order  to  induce  a  court  of  equity  to  enforce  specifically  a  contract,  "the 
complainant  must  show  no  oppression  or  unconscionable  advantage  when  he 
comes  into  a  court  of  conscience  asking  for  a  remedy  beyond  the  letter  of  his 
strict  rights.  He  must  not  ask  for  a  favor  beyond  his  technical  legal  rights 
when  he  bases  his  claim  to  that  favor  upon  a  hard,  oppressive,  technical  advan- 
tage. He  must  stand  before  the  court  prepared  to  meet  its  scrutiny  without  a 
blush,  relying  upon  the  advocacy  of  a  well-regulated  conscience  in  his  favor. 
Such  must  not  only  be  his  own  position,  but  he  must  show  that  it  is  not  unjust 
or  oppressive  to  the  defendant  to  compel  him  to  perform  specifically."  Caton, 
C.  J.,  in  Stone  v.  Pratt,  25  111.,  25. 


§    169.         UNDER    WHAT    CIRCUMSTANCES    A    DEFENCE. 


--0 


man  dealino^  with  great  traders  than  that  he  should  be  al- 
lowed to  enter  into  an  agreement  which  placed  him  so  en- 
tirely in  their  power It  is  a  hard  bargain,  and  there- 
fore this  court  will  not  interfere."'  It  appearing  that  a 
contract  between  two  railroad  companies  if  carried  out 
would  divert  from  its  legitimate  channel  a  large  portion  of 
the  profits  of  one  part  of  the  line  of  one  company  for  the 
benefit  of  the  other  without  any  corresponding  advantage, 
specific  performance  was  refused  irrespective  of  the  consid- 
eration whether  or  not  such  contract  was  legally  binding. 
Where  trustees  agreed  in  a  contract  for  sale  to  pay  ofif  in- 
cumbrances, and  it  was  ascertained  to  be  doubtful  whether 
the  purchase  money  would  be  sufficient  for  that  purpose, 
the  court  refused  to  compel  the  trustees  personally  to  ex- 
onerate the  estate  and  to  complete  the  sale."  Where  a 
mortgagor  agreed  to  grant  a  lease  under  the  expectation 
of  obtaining  the  mortgagee's  consent,  which  he  failed  to 
do  and  was  unable  to  redeem,  specific  performance  was  re- 
fused at  the  suit  of  the  proposed  lessee,  though  the  court 
granted  the  alternative  prayer  of  the  bill  for  rescission.' 
The  court  declined  to  enforce  a  contract  of  sale  where  the 
value  of  adjoining  land  would  thereby  be  greatly  deprecia- 
ted.' So,  specific  performance  w^as  refused  of  an  agree- 
ment to  purchase  land  without  a  right  of  way  to  it.°  It 
was  held  that  specific  performance  would  not  be  decreed 
of  a  contract  to  convey  real  estate  where  notes  were  given 
for  the  purchase  money  payable  in  Confederate  treasurv 
notes,  which,  before  the  maturity  of  the  notes,  became 
worthless  ;  and  that  it  was  not  sufficient  for  the  plaintiff  to 
allege  that  he  was  ready  and  willing  to  comply  with   his 

*  Kimberley  v.  Jennings,  6  Sim.,  340,  per  Sir  L.  Shadwell ;  overruled  on  an- 
other point  in  Lumley  v.  Wagner,  i  De  G.  M.  &  G.,  604. 

''Shrewsbury'  &  Birmingham  R.R.  Co.  v  London  &  Northwestern  R.R.  Co.. 
4DeG.  M.  &G.,  115;  S.  C.  6  House  of  Lds.,  113. 
'  Wedgwood  v.  Adams,  6  Beav.,  600. 

*  Costigan  v.  Hastier,  2  Sch.  &  Lef.,  160. 

'-  Church  of  the  Advent  v.  Farrow,  7  Rich.  Eq.,  378. 

*  Denne  v.  Light,  3  Jur.  N.  S.,  627. 

15 


2  26  HARDSHIP    OF    CONTRACT,  §    I/O. 

contract,  and  offered  "  to  do  whatever  this  court  may  order 
to  be  done  in  the  premises  respecting  said  Confederate 
money.'"  And  where  a  person  sells  property  which  is  sub- 
ject to  stringent  covenants  in  relation  to  the  use  of  it,  the 
court  will  decree  that  the  purchaser,  whether  he  knew  of 
the  covenants  or  not,  may  elect  to  rescind  the  contract,  or 
to  take  a  conveyance  with  similar  covenants.'  When  a 
sale  is  made  under  a  decree  of  the  court,  the  purchaser  will 
not  be  compelled  to  complete  the  purchase,  if  it  would  be 
unjust  in  a  private  individual  to  insist  upon  performance.' 

§  I  70.  Not  enough  chat  plaintiff  has  the  advantage. — 
Although  a  court  of  equity  will  not  weigh  nicely  the  rela- 
tive advantages  or  disadvantages  of  a  bargain  fairly  made, 
yet  it  will  always  consider  whether,  either  from  gross  in- 
adequacy of  consideration,  or  inequality  of  terms  such  as 
shock  the  common  sense  of  justice,  or  from  anything  in 
the  relations  of  the  parties,  or  in  the  circumstances  of  the 
contract,  it  is  unconscionable  in  a  party  to  exact  his  ad- 
vantage."    But  the  mere   naked   hardness  of  a  bargain   is 

•  Daughdrill  v.  Edwards,  59  Ala.,  424. 

'  Moxhay  v.  Tnderwick,  i  De  G.  &  S.,  708  ;  Lukey  v.  Higgs,  24  L.  J.  Ch.,  495. 
A.,  a  mortgagee  with  power  of  sale,  having  obtained  a  decree  of  foreclosure,  in- 
tending to  sell  as  absolute  owner,  entered  into  a  contract  for  sale  to  B.  In  the 
contract  there  was  inadvertently  copied  from  conditions  of  sale  or  other  parts  of 
the  property  previously  drawn  up,  the  statement  that  A.  was  a  mortgagee  with 
power  of  sale.  He  offered  to  convey  as  owner  under  the  decree  of  foreclosure,  but 
B.  insisted  on  a  title  under  the  power  of-sale.  In  a  suit  brought  by  the  latter 
for  specific  performance  of  the  contract,  the  court,  considering  that  to  impose  on 
the  vendor  the  risk  of  opening  the  decree  of  foreclosure  in  such  a  sale  would  be 
a  hardship,  ordered  that  the  bill  be  dismissed  unless  the  plaintiff  accepted  the 
conveyance  which  the  defendant  was  ready  to  execute.  Watson  v.  Marston,  4 
De  G.  M.  &  G.,  230.  Where  a  lessee  of  mines  entered  into  a  covenant  with  the 
lessor,  that  if  the  latter  at  any  time  before  the  end  of  the  term  should  notify  the 
former  of  his  wish  to  take  the  machinery  about  the  mines,  the  lessee  would  at 
the  expiration  of  the  lease  deliver  the  articles  named  in  the  notice  to  the  lessor 
on  his  paying  the  value,  to  be  ascertained  by  valuation,  specific  performance  of 
the  covenant  was  refused  on  the  ground  of  hardship,  and  the  court  also  declined 
to  interfere  by  injunction.  Talbot  v.  P'ord,  13  Sim.,  173.  A.  having  agreed,  in 
consideration  that  B.  would  not  join  in  barring  an  entail,  to  convey  to  him,  his 
heirs  or  assigns,  the  fee  of  such  parts  of  the  estates  which  were  situated  in  three 
counties  as  he  or  they  should  choose,  to  the  yearly  value  oi  two  hundred  pounds, 
specific  performance  was  refused  on  the  ground  among  other  reasons  of  the  in- 
convenience and  hardship  to  which  A.  would  thereby  be  subjected.  Hamilton 
V.  Grant,  3  Dow.,  33,  47. 

3  Laight  V.  Pell,  i  Edw.  Ch.,  577. 

*  "  As  it  is  impossible  to  reduce  within  the  limits  of  a  legal  definition  or  rule 


§    170.  PLAINTIFF    HAS    THE    ADVANTAGE.  227 

not  a  valid  objection  to  the  enforcement  of  a  contract  in 
equity  when  the  contract  is  otherwise  attended  with  cir- 
cumstances which  make  its  specific  performance  equitable.' 
Thus,  where  a  father  conveyed  his  entire  estate  to  his  chil- 
dren on  their  agreeing  to  support  and  maintain  their  parents 
in  a  way  suitable  to  their  condition  wherever  they  might 
desire  to  reside,  the  court  decreed  a  specific  performance, 
though  the  property  conveyed  was  wholly  inadequate  to 
such  support.'  In  an  action  of  ejectment,  to  compel  the 
specific  performance  of  a  contract  of  sale,  it  appeared  that 
the  defendant  agreed  that  the  plaintiff  might  dig  five  shafts 
on  the  defendant's  lot  in  search  of  iron  ore  between  the 
date  of  the  agreement  and  the  first  of  April  following,  and 
that  if  then  the  plaintiff  washed  to  purchase  the  lot  for  one 
thousand  dollars  he  should  have  the  right  to  do  so  ;  two 
hundred  dollars  of  the  purchase  money  to  be  paid  upon 
the  execution  of  the  deed,  and  eight  hundred  dollars  in 
two  years  thereafter,  with  interest,  to  be  secured  by  a  mort- 
gage on  the  premises,  and  that  iron  ore  was  found  by  the 
plaintiff  in  the  fifth  and  last  shaft.  The  defendant  offered 
to  prove  that,  by  the  ordinary  process  of  mining  ore,  the 
land  would  be  so  dug  up  within  the  two  years  as  to  be 
worthless,  and  to  show  the  amount  of  unsatisfied  mortgages 


the  various  transactions  which  may  render  a  contract  inequitable,  the  court 
must  deal  with  each  case  upon  its  own  circumstances.  Herein  appear  the 
nature  and  limits  of  the  discretion  assumed  by  the  court  for  this  branch  of  its 
jurisdiction,  and  also  in  what  sense  it  is,  that  a  specific  performance  is  said  to 
be  not  a  matter  of  course.  The  relief  lies  in  the  discretion  of  the  court  only  so 
far  as  it  must  necessarily  judge  whether  under  the  circumstances  of  the  case  the 
contract  is  or  is  not  an  inequitable  one.  That  being  determined,  judicial  dis- 
cretion ceases."  Godwin  v.  Collins,  4  Houst.  (Del.),  28,  per  Bates,  Ch.  And 
see  King  v.  Hamilton,  4  Pet.,  310  ;  Lee  v.  Kirby,  101  Ma^^s.,  420;  Wedgwood 
V.  Adams,  supra. 

'  Morrison  v.  Pray,  21  Ark.,  wo.  In  Coke  v.  Bishop,  3  Swanst.,  401,  the  de- 
fendant had  entered  into  articles  with  the  plaintiff  to  settle  upon  him  all  his 
real  and  personal  estate  which  he  had  or  might  thereafter  have  except  three 
thousand  pounds.  A  decree  was  made  to  settle  all  he  then  had.  Lord  Not- 
tingham said  :  "  An  attempt  was  made  before  me  to  have  a  new  decree  against 
the  defendant  to  settle  new  acquisitions  made  by  him,  but  I  did  not  think  that  a 
court  of  conscience  obliged  to  execute  such  a  strange  agreement  any  further 
than  it  had  been  carried  alrj^dy,  since  it  tended  to  the  discouragement  of  all 
honest  industry." 

*  Chubb  V.  Peckham,  13  N.  J.  Eq.,  207. 


228  HARDSHIP    OF    CONTRACT.  §§    I7I-I73. 

and  judgments  against  the  plaintiff.  There  being  no  proof 
of  fraud,  unfairness,  weakness  of  intellect,  intoxication, 
surprise,  or  any  circumstance  affecting  the  capacity  of  the 
defendant,  it  was  held  on  appeal  that  the  evidence  was 
properly  rejected.' 

§  171.  Cannot  be  set  up  by  members  of  corporation. — 
Where  a  contract  is  entered  into  by  a  corporation,  its  hard- 
ship to  individual  members  will  not  constitute  a  defence  ; 
for  the  court  "  cannot  recognize  any  party  interested  in 
the  corporation,  but  must  look  to  the  rights  and  liabilities 
of  the  corporation  itself.'" 

§  172.  With  reference  to  constritction  of  contract. — We 
have  seen'  that  if  the  hardship  flows  from  the  very  terms 
of  the  contract,  and  must  therefore  have  been  present  to 
the  minds  of  the  parties  when  they  made  the  agreement,  it 
will  require  a  much  stronger  case  to  induce  the  court  to 
withhold  its  interference  than  when  the  hardship  arises 
from  something  extrinsic,  and  so  far  concealed  as  to  have 
been  likely  to  escape  attention.  Where  the  question  is  as 
to  the  construction  of  a  contract,  and  its  hardship  is  in- 
sisted upon  as  an  argument  to  show  that  a  particular  con- 
struction cannot  be  correct,  "  unless  hardship  arises  to  a 
degree  of  inconvenience  and  absurdity  so  great  that  the 
court  can  judicially  say  such  could  not  be  the  meaning  of 
the  parties,  it  cannot  influence  the  decision.'" 

§  173.  Must  have  existed  at  date  of  contract. — It  is  not 
only  just  in  itself,  but  essential  to  the  maintenance  of  busi- 
ness relations  between  the  parties,  that  an  agreement,  fairly 
entered  into  between  them  upon  a  sufficient  consideration 
in  view  of  the  then  existing  state  of  things,  should  not  be 

'  Corson  v.  Mulvany,  49  Pa.  St.,  88. 

*  Edwards  v.  Grand  Junction  R.R.  Co.,  i  My.  &  Cr.,  674 ;  Hawkes  v.  Eastern 
Counties  R.R.  Co.,  i  De  G.  M.  &  G.,  737,  754. 

^  Atitc,  §  168. 

*  Preble  v.  Bog-hurst,  i  Swanst.,  309,  per  Lord  Eldon,  in  speaking  of  the 
hardship  which  the  defendants  alleged  would  result  from  the  carrying  out  of  an 
agreement  under  which  the  issue  of  a  first  marriage  claimed  the  whole  of  the 
real  estate  of  their  father  to  the  exclusion  of  the  issue  of  the  second  marriage. 


^    173.  MUST  HAVE  EXISTED  AT  DATE  OF  CONTRACT.  229 

evaded  in  consequence  of  subsequent  events  rendering  it 
less  advantageous  to  one  of  the  contractors  than  he  had 
expected.  The  question  of  hardship,  therefore,  should,  as 
a  general  rule,  be  judged  of  in  respect  to  the  time  of  the 
contract.'  Certainly,  if  the  contract  was  reasonable  when 
it  was  entered  into,  it  will  be  no  defence  that,  owing  to  a 
change  of  circumstances,  it  has  become,  without  the  fault 
of  the  party  seeking  its  performance,  less  beneficial  to  the 
other,  the  parties  to  the  agreement  being  held  to  have 
assumed  whatever  contingencies  may  attach  to  it.'  A 
lessee  of  renewable  leaseholds  having  covenanted  with  his 
sub-lessee  for  renewal  without  fine  on  every  renewal  to 
himself,  afterward,  contrary  to  his  expectations,  a  renewal 
was  made  to  him  on  terms  much  less  beneficial  than  had 
previously  been  done,  but  he  was  nevertheless  compelled  to 
renew  to  his  sub-lessee  without  any  contribution  toward 
the  increased  fine  he  had  paid."  Where  the  vendee  of  a 
farm  objected  that  after  the  making  of  the  contract  and 
before  conveyance,  streets  were  so  laid  out  as  to  make  the 
shape  of  the  lots  into  which  he  meant  to  divide  the  farm 
in  some  places  less  desirable  than  they  w^ould  have  been  if 
the  streets  had  run  where  the  plaintiff  induced  him  to  be- 
lieve they  would,  and  neither  warranty  nor  misrepresenta- 
tion on  the  subject  was  shown,  it  was  held  no  ground  for 
refusal  to  fulfil  the  contract,  or  for  compensation.*  Specific 
performance  of  a  contract  to  release  a  portion  of  land 
mortgaged  from  the  mortgage  lien  will  not  be  refused  on 
account  of  unexpected  hardship,  the  land  having  dimin- 

1  Low  V.  Treadwell,  12  Me.,  441  ;  Eames  v.  Eames,  16  Mich.,  348;  Lee  v. 
Kirby,  104  Mass.,  420.  Where  a  contract  was  fully  understood  by  the  parties 
at  the  time  of  its  inception,  and  is  not  vitiated  by  illegality  or  fraud,  a  court  of 
equity  will  not  rescind  it,  although  subsequent  events  may  have  so  materially 
changed  its  operation  as  to  make  it  hard  and  oppressive  on  one  of  the  parties. 
Addington  v.  McDonnell,  63  N.  C,  389;  ante,  §  165.     But  ?,&&  post,  §  176. 

-  Lawder  v.  Blachford,  Beat.,  522  ;  Webb  v.  Direct  London  &  Portsmouth 
R.R.  Co.,  9  Hare,  129.     It  is  the  same  at  law.     Jones  v.  Lees,  26  L.  J.  Ex.,  9. 

'  Evans  v.  Walshe,  2  Sch.  .&  Lef.,  419.  And  see  Revell  v.  Hussey,  2  Ball  & 
B.,  280;  Haywood  v.  Cope,  4  Jur.  N.  S.,  227. 

*  Morgan  v.  Scott,  26  Pa.  St.,  51. 


230  HARDSHIP    OF    CONTRACT.  §    1 74. 

ished  in  value  while  the  debt  increased.'  And  the  same 
was  held  where  a  person  ao;reed  to  pay  a  very  high  price 
for  land  on  which  he  intended  to  erect  a  mill,  which  he 
could  not  do  without  the  consent  of  a  corporation,  which 
was  refused.' 

§  174.  Caused  by  the  defendant. — When  the  hardship 
has  been  occasioned  by  the  defendant,  and  what  he  has 
agreed  to  do  is  "  reasonably  possible,"  he  cannot  avail  him- 
self of  hardship  as  a  defence  against  the  specific  perform- 
ance of  the  contract ;'  as  where  a  contract  having  been 
entered  into  by  a  railroad  company  for  the  purchase  of  land, 
the  powers  of  the  company  through  its  own  laches  expire 
before  the  completion  of  the  purchase.*  Where  a  tenant 
for  life  agreed  to  grant  a  mining  lease,  and,  to  a  bill  for 
specific  performance  by  the  proposed  lessee,  he  set  up  that 
as  he  was  only  a  tenant  for  life  he  had  no  power  to  grant 
such  a  lease,  and  would  be  accountable  for  waste,  it  was 
held  that  he  must  carry  out  the  contract  so  far  as  he  was 
able.*  Although  an  agreement  contained  in  a  submission 
to  arbitration  which  is  unreasonable,  will  not  be  enforced ;'" 
yet  it  is  otherwise,  where  the  hardship  is  in  the  award  itself, 
unreasonableness  in  the  latter,  being  in  a  matter  subsequent, 

'  Nims  V.  Vaughn,  40  Mich.,  356. 

-  Adams  v.  Weare,  i  Bro.  C.  C,  567.  In  this  case  Lord  Thurlovv  said  :  "  I 
am  not  very  anxious  to  discuss  the  point  what  bargains  the  court  will  execute  or 
not.  But  when  the  court  has  laid  it  down  as  an  article  of  the  equity  which 
men  shall  obtain  here  and  which  they  cannot  obtain  at  law,  that  instead  of 
damages  they  shall  have  a  specific  performance,  and  that  ev'ery  agreement  must 
be  performed  unless  something  at  the  time  of  making  the  bargain,  or  some- 
thing done  since,  is  to  amount  to  a  waiver  of  it  at  the  time  of  carrying  it  into 
execution,  if  you  do  not  confine  yourself  within  that  limit  there  are  no  bounds 
whatsoever.  For  rules  ought  to  be  fixed,  and  it  would  be  calamitous  that  the 
matter  should  rest  upon  such  loose  expressions  as  hard  and  unconscionable, 
which  expressions,  unless  they  are  properly  applied,  mean  little  or  nothing 

1  think  that,  without  entering  into  the  particulars  of  the  case,  the  master  of 
the  rolls  has  done  right.  For  no  case  can  be  cited  where  parties  have  made  a 
bargain  with  their  eyes  open,  and  no  surprise  whatever,  as  in  this  case,  in  which 
the  court  has  refused  to  decree  a  specific  performance."  See  Lord  James  Stuart 
V.  Northwestern  R.R.  Co.,  15  Beav.,  523. 

'  Pembroke  v.  Thorpe,  3  Swanst.,  note,  443  ;  Storer  v.  Gt.  Western  R.R.  Co., 

2  Y.  &  C.  C.  C,  52  ;  post,  §  199. 

*  Hawkes  v.  Eastern  Counties  R.R.  Co.,  i  De  G.  M.  &  G.,  737,  755  ;  S.  C,  5 
House  of  Lds.,  331. 

'Cleaton  v.  Gower,  Finch,  164.     "Nickles  v.  Hancock,  7  De  G.  M.  &  G.,  300. 


§  175-  IN    CASE    STRICT    FULFILMENT    REQUIRED.  23  I 

and  arising  from  the  decision  of  an  arbitrator  whom  the 
parties  themselves  have  chosen,  and  the  risks  attending 
upon  whose  judgment  they  have  assumed.' 

§  1 75.  In  case  strict  fulfibnent  reqinred.—WherQ  the 
contract  has  been  substantially  carried  out,  and,  owing  to 
vv'hat  has  been  done  under  it,  its  literal  performance  will  be 
peculiarly  hard  to  the  defendant,  it  will  not  be  specifically 
enforced,  nor  will  the  court  enforce  the  performance  of 
speculative  engagements.^  Thus,  a  person  having  con- 
tracted to  build  several  houses,  built  only  tw^o  new  ones, 
and  put  the  others  in  good  condition  by  repairing  them, 
and  in  so  doing  expended  twenty-two  hundred  pounds,  it 
was  held  that  although  the  agreement  was  capable  of  being 
enforced,  yet  as  it  would  entail  great  loss  and  hardship  on 
the  defendant,  and  be  useless  to  the  plaintiff,  the  court  would 
not  interfere.'  Where  the  plaintiff  sold  and  conveyed  to  a 
railroad  company  a  strip  of  land  six  rods  in  width  across  a 
small  village  lot  on  which  there  was  no  building,  without 
reserving  the  right  of  a  passage-way  over  the  portion  con- 
veyed, and  the  company  constructed  an  embankment  there- 
on for  the  track  of  their  road  fifteen  feet  high,  and  no 
special  circumstances  with  regard  to  the  manner  in  which 
the  land  had  been  or  might  be  used  rendering  a  crossing 
necessary  were  shown,  and  it  was  manifest  that  the  cost  of 
a  suitable  crossing  w^ould  greatly  exceed  its  value  to  the 
plaintiff,  it  was  held  that  specific  performance  of  the  duty 
imposed  upon  the  company  by  statute  to  construct  a  cross- 
ing would  not  be  decreed,  but  that  the  plaintiff  must  be  left 
to  his  remedy  at  law.' 

'Wood  V.  Griffith,  i  Swanst.,  43;  Fry  on  Specif.  Perform.,  117. 

2  Perlvins  v.  Wright,  3  Har.  &  McHen.,  324.  "  The  court  ought  not  to  decree  per- 
formance according  to  the  letter,  when  from  change  of  circumstances,  mistake, 
or  misapprehension,  it  would  be  unconscientious  so  to  do.  The  court  may  so  modify 
the  agreement  as  to  do  justice  as  far  as  circumstances  will  permit,  and  refuse 
specific  execution  unless  the  party  seeking  it  will  comply  with  such  modification 
as  justice  requires."  Thompson,  J.,  in  Mechanics'  Bank  of  Alexandria  v.  Lynn, 
I  Peters,  376. 

'City  of  London  v.  Nash,  3  Atk.,  512  ;  S.  C,  i  Ves.  Sen.,  12,  per  Lord  Hard- 
wicke. 

*  Clarke  v.  Rochester,  Lockport  &  Niagara  Falls  R.R.  Co.,  18  Barb.,  350. 


232  HARDSHIP    OF    CONTRACT.  §    1 76. 

j^  I  76.  Occasioned  by  plaintiff. — A  contract  which  be- 
comes unreasonable  after  it  is  made,  through  the  fault  of 
the  plaintiff,  will  not  be  enforced.'  Lapse  of  time,  change 
of  circumstances,  backwardness  and  trifling  on  the  part  of 
the  vendee  of  land,  may  induce  a  court  of  equity  to  refuse 
to  decree  specific  performance  in  his  behalf.'  He  must  pre- 
sent his  claim  to  relief  while  affairs  remain  in  such  a  con- 
dition that  performance  can  be  enforced  without  injury  to 
others,  and  especially  he  must  not  himself  have  done  any 
act  that  is  incompatible  with  his  claim  for  performance,  or 
that  makes  such  a  claim  inequitable.'  In  a  suit  for  the  spe- 
cific performance  of  a  contract  for  the  sale  of  land,  and  for 
an  injunction  restraining  the  defendant  from  prosecuting 
an  action  of  ejectment  for  such  land,  it  appeared  that  the 
defendant,  as  trustee,  sold  the  land  at  public  auction  in 
January,  1863,  for  Confederate  money  payable  in  cash; 
that  the  complainant,  who  was  the  sole  bidder,  was  declared 
the  purchaser ;  that  the  complainant  did  not  pay  the  cash 
at  the  sale,  but  offered  to  do  so  ten  or  twelve  months  there- 
after, when  Confederate  money  had  greatly  depreciated  ;  that 
the  price  bid  for  the  land  was  less  than  one-fourth  of  its 
value  ;  and  that  Confederate  money  at  the  commencement 
of  the  suit  was  utterly  worthless  :  it  was  held  that  as  the  com- 
plainant did  not  fulfil  on  her  part,  and  the  enforcement  of 
the  contract,  if  it  were  practicable,  would  be  unjust  and 
inequitable  to  the  defendant  and  the  trust  creditors  whom 
he  represented,  the  relief  asked  must  be  refused."  A.,  being 
in  occupation  of  a  residence,  conveyed  to  B.  adjoining  land 
for  the  erection  thereon  by  B.  of  a  mansion,  with  gardens 
and  offices  ;  B.  covenanting  with  A.  not  to  use  the  land  in 
a  particular  manner  which  would  interfere  with  the  enjoy- 
ment by  A.  of  certain  other  adjoining  lands.  A.,  or  those 
claiming  under  him,  subsequently  covered  a  considerable 

'Gannett  v.  Macon,  6  Call,  308  ;  Ford  v.  Herron,  4  Munf.,  316. 

-  Turner  v.  Clay,  3  Bibb.,  52  ;  Patterson  v.  Martz,  8  Watts,  374;  post,  §471. 

^  Potter  V.  Dougherty,  25  Pa.  St.,  405.  ^  Whitaker  v.  Bond,  63  N.  C,  290. 


§    177-         PERFORMANCE    WOULD    CAUSE    FORFEITURE.  233 

part  of  these  lands  with  houses,  and  the  residence  of  A.  was 
torn  down  to  make  w^ay  for  streets  and  buildings.  On  a 
motion  for  an  injunction  to  restrain  the  defendants,  who 
claimed  under  B.,  from  using  the  land  in  breach  of  the  cove- 
nants of  the  deed,  it  was  held  that  as  A.  had  chanafed  the 
condition  of  the  property,  it  would  be  inequitable  thus  to 
enforce  the  covenants  specifically,  and  the  plaintiff  was  left 
to  his  remedy  at  law.'  So,  where  a  mode  of  renewal  differ- 
ent from  that  pointed  out  by  the  covenant,  had  been  acqui- 
esced in  for  a  long  time,  the  court  refused  to  enforce  the 
covenant  in  its  orio-inal  terms.'' 

§  177.  Where  perfoi'-mance  would  cause  forfeiture. — 
The  liability  to  a  forfeiture  will  be  deemed  such  a  hard- 
ship as  to  prevent  the  court  from  enforcing  the  contract 
against  the  person  thus  liable.'    Where  a  testator  devised  a 

'  Duke  of  Bedford  v.  The  Trustees  of  the  British  Museum,  2  My.  &  K.,  552.  See 
Shrewsbury  &  Birmingham  R.R.  Co.  v.  Stour  Valley  R.R.  Co.,  2  De  G.  M.  &  G., 
882. 

"Davis  V.  Hone,  2  Sch.  &  Lef.,  341. 

^Fildes  V.  Hooker,  3  Mad.,  106.  In  September,  1852,  A.  entered  into  a  con- 
tract with  B.  to  sell  him  several  parcels  of  land  for  four  thousand  and  fifty  dol- 
lars. A  year  afterward,  A.  agreed  that  certain  covenants  with  C.  should  be  per- 
formed on  the  loth  of  the  following  October,  and  that  if  he  failed  to  do  so,  he 
would  forfeit  and  pay  one  thousand  dollars  as  stipulated  damages,  to  secure 
which,  he  deposited  with  D.  &  E.  the  obligation  of  B.  to  pay  him  the  purchase 
money ;  and  D.  &  E.  were  authorized  to  deliver  said  obligation  to  C.  in  case  A. 
failed  to  pay  the  thousand  dollars.  And  C.  was  authorized  to  sell  the  contract 
of  B.  in  open  market,  in  order  to  raise  the  money  with  which  to  pay  himself  the 
thousand  dollars.  Before  the  time  fixed  for  performance  by  A.  of  liis  covenants 
with  C,  A.  alleging  that  he  had  been  detrauded  by  C,  forbade  D.  &  E.  to  de- 
liver to  C.  the  obligation  of  B.  In  January,  1853,  one  S.  purchased  of  B.  fifteen 
acres,  part  of  the  premises  which  A.  had  sold  and  agreed  to  convey  to  B.  D.  & 
E.  delivered  the  obligation  of  B.,  which  A.  had  left  with  them,  as  above  stated, 
to  C,  who,  in  January,  1854,  sold  it  to  S.  for  one  thousand  dollars,  which  was  just 
sufficient  to  pay  the  forfeiture  provided  for  in  the  contract  between  A.  and  C.  S. 
insisting  that  by  the  purchase  of  the  obligation,  he  was  entitled  to  recover  the 
money  due  thereon  in  place  of  A.,  and  that  the  latter  was  in  effect  thereby  fully 
paid  the  purchase  money  for  which  he  had  agreed  to  convey  the  premises  sold 
to  B.,  filed  a  bill  in  equity  to  compel  A.  to  convey  to  him  the  fifteen  acres  which 
he  had  purchased  of  B.  The  court  in  affirming  the  decree  of  the  court  below 
dismissing  the  bill,  said  in  substance  as  follows  :  "  It  is  a  well-settled  rule  of  law, 
that  an  entire  contract  cannot  be  divided  so  as  to  compel  a  party  to  perform  it 
in  parcels,  either  to  different  persons,  or  at  different  times.  When  B.  sold  a  part 
of  the  premises  to  S.  he  could  not  thereby  impose  the  legal  obligation  upon  A. 
to  convey  that  portion  to  S.  and  the  balance  to  himself.  That  would  be  making 
it  in  fact  two  contracts  instead  of  one.  It  was  asking  him  to  make  satisfaction 
to  two  instead  of  to  one.  In  case  of  disagreement,  it  exposed  him  to  two  prose- 
cutions instead  of  one,  and  required  him  to  make  two  deeds  instead  of  one.   This 


234  HARDSHIP  OF  CONTRACT.  §  1 77. 

small  estate  to  his  son  on  condition  that  if  he  sold  it  within 
tw^enty-five  years,  half  of  the  purchase  money  should  go  to 
his  brother,  specific  performance  of  a  contract  entered  into 
by  the  son  for  the  sale  of  the  property  was  refused.'  And 
where  a  lessee  contracted  for  the  sale  of  building  lots,  and 
agreed  to  make  a  road  which  it  was  ascertained  he  could 
not  do  without  being  liable  to  the  forfeiture  of  leasehold 
land  through  which  the  road  would  pass,  or  of  being  sued 
by  the  lessor,  specific  performance  was  decreed  excepting 
as  to  the  construction  of  the  road,  with  compensation  to  the 
purchaser  for  the  want  of  that."  Specific  performance  of  a 
contract  to  purchase  leaseholds  was  refused  where  it  would 
involve  the  purchaser  in  litigation  as  to  the  payment  of 
ground  rents  the  title  to  which  was  disputed.^  When  the 
liability  to  forfeiture  is  incurred  by  a  transaction  of  the  party 
subsequent  to  the  contract,  specific  performance  will,  not- 
withstanding, be  decreed  against  him." 


is  a  hardship  which  the  common  law  will  never  allow  to  be  imposed  upon  a 
promissor  or  obligor.  Nor  is  this  principle  of  the  common  law  ignored  by  courts 
of  equity,  although  in  exceptional  cases  they  will  overlook  it,  where  it  is  neces- 
sary to  protect  the  rights  of  an  innocent,  fair,  and  bona  fide  purchaser  against  a 
contemplated  fraud.  Waiving  the  question  of  the  division  of  the  contract,  the 
complainant,  before  he  could  call  on  the  defendant  to  convey  to  him  this  land, 
was  obliged  to  satisfy  an  obligation  which  secured  to  the  defendant  about  four 
thousand  dollars.  He  attempts  to  do  this  not  by  paying  him,  or  any  one  else 
having  a  right  to  receive  the  money,  the  actual  amount  due  or  to  become  due  on 
the  contract ;  but  he  purchases  the  contract  at  a  forced  sale,  for  one  thousand 
dollars.  The  defendant,  by  his  contract  with  B.,  was  entitled  to  receive  about 
the  sum  of  four  thousand  dollars,  before  he  could  be  asked,  even  by  B.  himself, 
to  convey  any  portion  of  the  premises.  Now,  what  has  he  realized  for  this  four 
thousand  dollars  worth  of  land?  Absolutely  nothing.  His  claim  or  right  to  re- 
ceive the  mo'iey  was  sold  (and  upon  the  validity  of  that  sale  we  pass  no  opinion) 
to  pay  a  forfeit.  Nothing  more  ;  nothing  for  which  he  had  received  value.  Now 
all  of  this  may  have  been  a  strictly  legal  transaction.  The  defendant,  by  his  own 
folly,  may  have  frittered  away  his  legal  right  to  this  money,  or  to  the  land  ;  but  it 
is  not  such  a  transaction  as  should  induce  a  court  of  equity  to  throw  down  the 
legal  barriers  which  surround  the  defendant,  and  compel  him  to  do  more  for  the 
ease  and  benefit  of  the  complainant  than  the  strict  rules  of  law  will  give  him. 
Equity  will  never  give  the  pound  of  flesh,  although  it  is  in  the  bond  ;  but  will 
leave  the  law  to  give  its  value  only."     Stone  v.  Pratt,  25  111.,  25. 

'  Faine  v.  Brown,  cited  2  Ves,  Sen.,  307.        ^  Peacock  v.  Penson,  1 1  Beav.,  355. 

•''  Pegler  v.  White,  33  Beav.,  403. 

*  Helling  v.  Lumley,  3  De  G.  &  J.,  493.  In  England  it  has  been  held  that  where 
the  vendor  of  land  is  liable  to  covenants  in  relation  thereto,  although  there  is  no 
stipulation  that  he  shall  be  indemnified  against  them,  yet  the  purchaser,  after  no- 
tice of  the  covenants,  must  elect  either  to  rescind  the  contract,  or  to  execute  an 


§    178.       WHERE  REVERSIONARY  INTERESTS  ARE  SOLD.  235 

§  178.  Where  reversionary  interests  are  sold. — To  the 
head  of  hardship,  may  be  referred  contracts  for  the  sale  of 
reversionary  interests.  As  one  who  is  possessed  of  only  a 
future  interest  sells  at  a  disadvantage,  contracts  of  heirs  for 
the  sale  of  such  estates  at  an  under-value  will  not  be  en- 
forced ;  and  the  burthen  of  showing  that  the  transaction 
was  in  all  respects  fair,  will  rest  on  the  purchaser  who  seeks 
the  aid  of  the  court,'  This  principle  is  not  applicable  when 
the  tenant  for  life  and  the  reversioner  concur,  for  the 
reason  that  they  together  constitute  "  a  vendor  wnth  a 
present  interest."'  But  it  is  otherwise  in  case  of  the  sale 
of  an  inconsiderable  interest  in  possession,  together  wnth 
the  reversion  : '  as,  for  instance,  the  sale  of  an  annuity  in 
possession  with  the  reversion  when  the  estimated  value  of 
the  annuity  is  only  about  one-sixth  of  the  reversion.'  The 
principle  under  consideration  does  not  apply  w-here  the  re- 
versionary interest  has  been  sold  at  auction,  for  the  reason 
that  as  there  is  in  such  case  no  treaty  between  the  vendor 
and  vendee,  the  former  is  in  no  sense  in  the  power  of  the 


indemnity  to  the  vendor ;  since  if  this  were  not  done,  the  vendor  would  lose  his 
land,  and  retain  his  liability  as  to  it.  Moxhay  v.  Indervvick,  i  De  G.  &  Sm.,  708  ; 
Lukey  v.  Higgs,  24  L.  J.  Ch.,  495. 

'  Playford  v.  Playford,  4  Hare,  546.  In  relation  to  the  specific  performance  of 
contracts  for  the  sale  of  expectancies,  see  ante,  B.  i,  Ch.  2,  §§  37,  38,  39. 

-  Wood  V.  Abrey,  3  Mad.,  417.  "  It  was  laid  down  by  Lord  Brougham, 
Chancellor,  in  King  v.  Hamlet,  2  M.  &  K.,  456,  that  the  extraordinary  protection 
given  the  sale  of  reversionary  interests,  must  be  withdrawn  if  it  shall  appear 
that  the  transaction  was  known  to  the  father,  or  other  person  standing  in  loco 
parentis,  the  person,  for  example,  from  whom  the  spes  successtonis  was  enter- 
tained, or  after  whom  the  reversionary  interest  was  to  become  vested  in  posses- 
sion, even  although  such  parent  or  other  person  took  no  active  part  in  the  nego- 
tiation, provided  the  transaction  was  not  opposed  by  him,  and  so  carried  through 
in  spite  of  him.  Sir  Edward  Sugden,  V.  &  P.,  316,  states  that  this  rule  is  sup- 
ported by  no  previous  authority,  and  as  a  general  rule,  cannot  be  maintained. 
But  Lord  Brougham's  decision  was  affirmed  by  the  House  of  Lords,  and  Lord 
Lyndhurst  there  stated  his  concurrence  in  the  chancellor's  judgment.  And  it 
is  submitted  that  the  rule  is  correct  as  to  the  contracts  by  persons  respecting 
expectancies  from  a  party  who  was  aware  of  the  contract  ;  because  the  conceal- 
ment of  such  a  contract  from  that  party  is  made  in  the  early  cases  the  chief 
ground  of  objection  to  such  transactions ;  the  policy  of  the  law  being  against  a 
dealing  as  to  expectations  which  is  kept  a  secret  from  those  by  whose  bounty 
the  expectations  are  to  be  realized."  Batten  on  Specif  Perform.,  30,  referring 
to  Cock  v.  Richards,  10  Ves.,  429  ;  Woodhouse  v.  Shepley,  2  Atk.,  535. 

'Davis  V.  Duke  of  Marlborough,  2  Swanst.,  154. 

*  Earl  of  Portmore  v.  Taylor,  4  Sim.,  182. 


236  HARDSHIP  OF  CONTRACT.  §  I?^- 

latter,  and  there  is  no  opportunity  for  fraud  or  imposition 
on  the  part  of  the  purchaser.'  Moreover,  the  court  de- 
cides the  question  of  under-value  by  the  market  price, 
which  a  sale  at  auction  is  a  mode  of  ascertaining."  Circum- 
stances which  would  induce  the  court  to  rescind  the  sale  of 
a  reversionary  interest  if  completed,  will  afford  a  defence 
to  a  suit  for  the  specific  performance  of  an  executory  con- 
tract for  its  sale. 

1  Shelly  V.  Nash,  3  Mad.,  232. 

-  Wardle  v.  Carter,  7  Sim.,  490 ;  Barell  v.  Dann,  2  Hare,  452 ;  Earl  of  Aid- 
borough  V.  Trye,  7  Cl.  &  Fin.,  436,  460 ;  Edwards  v.  Burt,  2  De  G.  M.  &  G.,  55. 


CHAPTER  V. 

INADEQUACY,  ABSENCE,  OR  FAILURE  OF  CONSIDERATION. 

179.  Mere  inadequacy  of  consideration  not  a  defence. 

180.  Inadequacy  material  in  connection  with  other  circumstances. 

181.  Distinction  between  inadequacy  and  excess  of  price. 

182.  What  necessary  to  be  shown  where  inadequacy  is  relied  on  as  a  defence. 

183.  Excess  of  price  when  a  ground  for  refusing  specific  performance. 

184.  Inadequacy  in  case  of  sale  at  auction. 

185.  Inadequacy  to  be  determined  with  reference  to  time  of  agreement, 

186.  Voluntary  contracts  not  enforced. 

187.  Rule  as  to  gifts  of  real  estate. 

188.  What  deemed  a  sufficient  consideration. 

189.  Failure  of  consideration  when  a  defence. 

190.  Subject  matter  of  contract  must  exist  at  date  of  agreement, 

191.  At  what  time  contract  becomes  complete  in  case  of  sale  by  court. 

192.  Rule  where  benefit  or  loss  results  after  signing  of  contract, 

193.  Loss  by  whom  borne  when  contract  is  conditional. 

194.  After  conclusion  of  contract,  property  at  risk  of  purchaser. 

195.  Rule  where  contract  has  become  incapable  of  being  performed  since  com- 

mencement of  suit. 
» 

§  I  79,  Inadequacy  not  in  itself  an  objection. — Although 
inadequacy  of  consideration  in  contracts  for  sale,  either  in 
the  price  or  property  sold,  may  be  a  ground  of  defence,  yet 
the  facility  of  contracting  and  the  free  exercise  of  the 
judgment  and  will  of  the  parties  require  that,  as  a  general 
rule,  they  should  be  sole  judges  as  to  the  value  of  the 
benefits  to  be  derived  from  their  bargains.  It  is  therefore 
manifestly  just  and  expedient  that  mere  inadequacy  of  con- 
sideration or  value  should  not  in  itself  be  deemed  by  the 
court  a  sufficient  reason  to  refuse  to  specifically  enforce  a 
contract,  or  a  cause  to  set  it  aside.  And  such  is  now  the 
rule.'     "  For  courts  of  equity,  as  well  as  courts  of  law,  act 

'  Stilwell  V.  Wilkins,  Jac,  282  ;  Haywood  v.  Cope,  25  Beav,,  140 ;  White  v. 
Flora,  2  Overton  Tenn.,  426;  Newman  v.  Meek,  i  Freem.  Miss.  Ch,,  141  ;  Win- 
termute  v.  Snyder,  2  Green  Ch.,489;  Eyre  v.  Potter,  15  How.,  42  ;  Ayers  v. 
Baumgarten,  15  111.,  444;  Harris  v.  Tyson,  24  Pa.  St.,  347  ;  Kidder  v.  Chamber- 
lin,  41  Vt.,  62  ;  Judge  v.  Wilkins,  19  Ala.,  765  ;  Chaires  v.  Brady,  10  Fla.,  133; 
Maddox  v.  Simmons,  31  Ga.,  512  ;  Holmes  v.  Fresh,  9  Mo.,  201  ;  Harrison  v. 
Town,  17  lb.,  237  ;  Shepherd  v.  Bevin,  9  GUI,  32  ;  Potter  v.  Everett,  7  Ired.  Eq., 


238  INADEQUACY,    ETC.,    OB'    CONSIDERATION.  §    1 79. 

upon  the  ground  that  every  person  who  is  not  from  his 
pecuHar  condition  and  circumstances  under  disabiHty,  is  en- 
titled to  dispose  of  his  property  in  such  manner  and  upon 
such  terms  as  he  chooses ;  and  whether  his  bargains  are 
wise  and  discreet,  or  profitable  or  unprofitable,  or  other- 
wise, are  considerations  not  for  courts  of  justice,  but  for 
the  party  himself  to  deliberate  upon."  '  The  reason  of  this 
is  to  be  sought  in  the  extreme  difficulty  of  judging  as  to 
the  feelings  and  motives  which  may  have  actuated  the 
parties,  and  the  corresponding  variety  of  opinions  which 
may  be  formed  with  reference  to  the  sufficiency  of  the  con- 
sideration. A  different  view  of  the  subject  w^as  formerly 
entertained.  Thus  it  w^as  held  in  an  early  case  that,  inde- 
pendently of  all  considerations  of  fraud,  the  court  upon  the 
mere  circumstance  of  hardship  in  the  transaction  would 
not  enforce  it.''  Where  there  was  a  contract  for  the  sale  of 
property  worth  ten  thousand  pounds  for  twenty  thousand 
pounds,  six  thousand  pounds  to  be  paid  down,  and  the 
balance  on  the  death  of  a  man  aged  sixty-four  or  sixty-five, 

152;  Mann  v.  Betterley,  21  Vt.,  326  ;  Stearns  v.  Beckham,  31  Gratt.,  379.  The 
general  rule  is  that  inadequacy  of  consideration,  exorbitance  of  price,  or  im- 
providence in  the  contract,  in  the  absence  of  fraud,  ambiguity,  or  mistake,  will 
not  constitute  a  defence.  Lee  v.  Kirby,  104  Mass.,  420  ;  Booten  v.  Scheffer,  21 
Gratt.,  474. 

'  X  Story's  Eq.  Juris.,  Sec.  244.  "  The  value  of  a  thing  is  what  it  will  pro- 
duce, and  admits  of  no  precise  standard.  It  must  be  in  its  nature  fluctuating, 
and  will  depend  upon  ten  thousand  different  circumstances.  One  man,  in  the 
disposal  of  his  property,  may  sell  it  for  less  than  another  would.  He  may  sell 
it  under  a  pressure  of  circumstances  which  may  induce  him  to  sell  it  at  a  par- 
ticular time.  Now,  if  courts  of  equity  were  to  unravel  all  these  transactions, 
they  would  throw  everything  into  confusion,  and  set  afloat  all  the  contracts  of 
mankind.  Therefore  1  never  can  agree  that  inadequacy  of  consideration  is  in 
itself  a  principle  upon  which  a  party  may  be  relieved  from  a  contract  which  he 
has  wittingly  and  willingly  entered  mto.  It  may  indeed  be  strong  evidence  of 
fraud,  etc.,  when  you  see  distress  on  one  side  and  money  on  the  other,  and  a 
wish  on  the  one  side  to  press  that  distress  into  submission  to  its  terms.  In- 
adequacy of  price  goes  a  great  way  in  warranting  the  court  to  infer  from  this 
that  some  sort  of  fraud  was  used  to  draw  the  other  party  into  the  bargain." 
Lord  Ch.  B.  Eyre  in  Griffith  v.  Spratley,  i  Cox,  384.  A  court  will  not  annul 
dispositions  of  property  on  the  sole  ground  that  they  are  improvident,  or  such 
as  a  wise  man  would  not  have  made,  or  a  man  of  nice  honor  consented  to  re- 
ceive ;  but  all  the  bargains  of  a  person,  if  formally  executed,  and  no  power  of 
revocation  reserved,  are  binding,  unless  avoided  by  reason  of  surprise,  mistake, 
duress,  undue  influence,  the  suggestion  of  falsehood,  or  the  suppression  of 
truth.     Green  v.  Thompson,  2  Ired.  Eq.,  365. 

•  Tilly  v.  Peers,  r/^v/  10  Ves.,  301. 


§    l8o.  REFERENCE    TO    PARTICULAR    TRANSACTION.  239 

and  there  were  no  circumstances  of  oppression  or  deceit, 
the  court,  while  it  refused  to  set  aside  the  agreement,  also 
refused  to  enforce  it  on  the  ground  that  it  was  a  hard  bar- 
gain.' And  where  a  person,  during  a  public  mania  for 
speculation,  had  purchased  a  house  for  ten  thousand  five 
hundred  pounds,  and  paid  a  deposit  of  one  thousand  pounds, 
he  was  discharged  on  forfeiting  the  deposit  on  the  ground 
of  the  general  delusion  the  nation  was  under  at  the  time  of 
the  contract,  and  the  imaginary  values  then  put  by  people 
on  property.'  Chancellor  Kent  held  that  inadequacy  of 
price  might  of  itself,  and  without  fraud  or  other  ingredi- 
ent, be  sufficient  to  prevent  the  court  from  enforcing  the 
specific  performance  of  a  contract  to  sell  land.  In  the  case 
in  which  he  so  decided,'  the  inadequacy  was  so  great  (one- 
half)  as  to  give  the  character  of  hardship,  unreasonable- 
ness, and  inequality  to  the  contract.  This  decision  was, 
however,  reversed  on  appeal.' 

§  180.  To  be  viezved  ivith  reference  to  particular  trans- 
action.— But  inadequacy  of  consideration  is  always  a  ma- 
terial circumstance,  to  be  weighed  along  with  other  circum- 
stances existing  in  a  case,  conducing  to  show  that  it  would 
be  inequitable  to  enforce  the  specific  performance  of  the 
contract.  Where  A.  purchased  property  of  B.  for  a  small 
sum  compared  with  its  value,  agreeing  to  give  the  children 
of  B.  the  benefit  of  it  on  being  repaid  the  purchase  money 


Day  V.  Newman,  2  Cox,  ']'] . 

-  Savile  v.  Savile,  i  P.  Wms.,  745  ;  S.  C,  5  Vin.  Abr.  516,  PI.  25.  And  see 
Gasque  v.  Small,  2  Strobh.  Eq.,  72. 

^  Seyrnour  v.  Delancey,  6  Johns.  Ch.,  222. 

■*  3  Cowen  445.  "  By  the  Roman  law  these  difficulties  in  the  way  of  relieving 
against  inadequacy  of  consideration  in  certain  cases  were  overcome,  at  least  as 
to  immovable  property,  by  the  fixing  of  the  arbitrary  standard  of  half  the  real 
price  as  that  which  would  give  the  sufferer  a  right  to  the  interference  of  the  law. 
When  the  price  paid  did  not  amount  to  half  the  real  value  of  the  thing  sold, 
the  vendor  might  put  the  purchaser  to  his  election  either  to  take  back  the  pur- 
chase money  and  restore  the  thing  sold,  or  to  keep  the  thing  and  make  up  the 
deficiency  in  the  purchase  money.  The  French  law  adopted  the  same  prin- 
ciple, except  in  the  case  of  sales  between  co-heirs  and  co-proprietors,  where  a 
defect  of  one-quarter  of  the  price  had  the  same  effect  as  the  like  defect  of  one- 
half  in  other  cases."  Fry  on  Specif.  Perform.,  131,  referring  to  Code,  Lib.  IV., 
Tit.  44;  Pothier  Tr.  des  Oblig.,  P.  i,  Ch.  i,  S.  i,  Art.  3. 


240  INADEQUACY,    ETC.,    OF    CONSIDERATION.  §    1 80. 

and  interest,  the  court  held  that  the  doctrine  that  equity 
will  not  enforce  a  contract  where  there  is  great  inadequacy 
of  price  did  not  apply,  and  specific  performance  was  de- 
creed.' A.,  living  in  Canada,  entered  into  an  agreement 
with  B.  to  remove  with  his  family  to  the  city  of  C,  where 
B.  resided,  and  live  with  and  take  care  of  B.  during  her  life, 
she  stipulating  to  give  her  residence  to  some  one  of  A.'s 
family,  after  her  death,  by  a  deed  left  in  escrow,  or  by  will. 
A.  performed  his  part  of  the  contract,  but  B.  died  without 
deeding  or  devising  the  property  as  agreed.  In  a  suit  for 
specific  performance,  brought  by  A.,  his  wife,  and  children, 
it  being  ascertained  that  the  consideration  was  very  inade- 
quate, and  that  there  were  other  inequitable  circumstances, 
the  relief  asked  for  was  refused,  and  the  trial  of  an  issue 
ordered  to  determine  the  amount  of  compensation  to  which 
A.  was  entitled  for  the  services  rendered,  articles  furnished, 
and  money  expended  in  performing  the  contract."  Where 
the  inadequacy  is  such  as  to  shock  the  moral  sense  of  man- 
kind, it  constitutes  a  defence  ;  though  fraud  is  of  the  essence 
of  the  objection  to  the  contract  in  such  a  case.'  Where  the 
price  for  which  land  was  sold  was  not  one-tenth  its  value,  it 
was  held  that  although  this  might  not  constitute  ground  for  a 
rescission  if  unconnected  with  fraud,  vet  it  was  a  pfood 
reason  why  the  court  ought  not  to  aid  the  purchaser."  So, 
where  land  sold  for  twenty-one  dollars,  would  readily  have 
brought  one  hundred  and  five  dollars,  and  was  worth  five 
hundred  or  six  hundred  dollars,  and  the  purchasers  were 
calculating  speculators,  it  was  held  that  they  were  not  en- 
titled to  the  aid  of  the  court. ^   With  regard  to  circumstances 

'  Sarter  V.  Gordon,  2  Hill  S.  C.  Ch.,  121. 

2  Stanton  v.  Miller,  14  Hun.,  383  ;  S.  C,  58  N.  Y.,  192. 

'  Coles  V.  Trecothick,  9  Ves.,  246 ;  Borell  v.  Dann,  2  Hare,  440  ;  Osgood  v. 
Franklin,  2  Johns.  Ch.,  i  ;  Garnett  v.  Macon,  2  Brock,  185  ;  Fripp  \.  Fripp, 
Rice  Ch.,  84  ;  Hardeman  v.  Burge,  10  Yerg.,  202  ;  Juzan  v.  Toulmin,  9  Ala.,  662  ; 
White  V.  Thompson,  i  Dev.  &  Batt.  Eq.,  493  ;  Burtch  v.  Hogge,  Harr.,  Mich., 
31  ;  Rodman  v.  Zilley,  i  N.  J.  Eq.,  320;  Viele  v.  Troy,  etc.,  R.R.  Co.,  2  Barb., 
581  ;  Western  R.R.  Corp.  v.  Babcock,  6  Mete,  346  ;  Hays  v.  Hollis,  8  Gill,  357  ; 
Hale  V.  Wilkinson,  21  Gratt.,  75. 

^  Clement  v.  Reid,  9  Sm.  &  Marsh,  535. 

'  Modisett  v.  Johnson,  2  Blackf.,  431. 


§    l8o.        REFERENCE    TO    PARTICULAR    TRANSACTION.  24 1 

surrounding  a  contract  of  sale  likely  to  affect  the  de- 
cision of  the  court,  it  was  held,  in  one  case,  that  the  extreme 
old  age  of  the  contracting  party,  the  suddenness  with  which 
the  proposition  to  buy  was  presented  to  him,  the  brief 
period  taken  for  consideration,  his  ignorance  of  the  quan- 
tity of  land  which  he  was  about  to  sell,  coupled  with  very 
considerable  proof  of  mental  weakness,  and  great  inade- 
quacy of  price,  presented  abundant  reasons  for  withholding 
equitable  aid  to  the  consummation  of  the  contract.'  In 
another  case,  a  decree  for  the  specific  performance  of  a  con- 
tract for  the  sale  of  real  estate,  w^as  denied  on  account  of 
great  inadequacy  of  price,  although  there  was  no  proof  of 
actual  fraud  or  imposition  on  the  part  of  the  purchaser,  the 
vendor  having  just  attained  the  age  of  twenty-one,  and  hav- 
ing acted  hastily  upon  being  urged  by  the  vendee.'  Where 
the  parties  to  the  sale  of  a  legacy  were  of  very  unequal  ca- 
pacity— the  seller  being  a  man  of  naturally  weak  intellect, 
rendered  weaker  by  habits  of  intemperance  of  long  stand- 
ing, in  embarrassed  circumstances,  and  reposing  confidence 
in  the  buyer,  who  was  sharp  and  sagacious,  and  the  con- 
tract was  grossly  inadequate — it  was  decreed,  in  a  suit  brought 
by  the  seller  for  relief,  that  the  buyer  should  pay  to  him  the 
difference  between  the  amount  named  in  the  contract  of 
sale,  and  what  would  constitute  a  fair  price.'  Where,  how- 
ever, a  young  man  who  had  just  attained  the  age  of  twenty- 
one,  sold  his  reversionary  interest  in  land,  and  there  was  no 
fraud  on  the  part  of  the  purchaser,  or  confidential  relation 
between  the  parties,  it  was  held  that  the  sale  would  not  be 
set  aside  for  mere  inadequacy  of  price."  So,  where  a  man 
over  sixty  years  of  age,  of  intemperate  habits,  and  in  prison 
on  a  criminal  charge,  sold  and  conveyed  to  a  person  a  farm 

'  Graham  v.  Pancoast,  30  Pa.  St.,  89. 

"  Clitherall  v.  Ogilvie,  i  Dessaus  Eq.,  250. 

'  McCormick  v.  Malin,  5  Blackf.,  509.  And  see  Campbell  v.  Spencer,  2  Bin- 
ney,  133;  Henderson  v.  Hays,  2  Watts,  148.  A  deed  given  by  a  weak  man 
in  a  necessitous  condition,  for  a  very  inadequate  consideration,  will  be  set  aside. 
Bunch  V.  Hurst,  3  Dessaus  Eq.,  273 ;  Butler  v.  Haskell,  4  lb.,  651. 

*  Cribbins  v.  Markwood,  13  Gratt.,  495. 

16 


242  INADEQUACY,   ETC.,   OF  CONSIDERATION.      §§    181,   1 82. 

worth  twenty-five  hundred  dollars,  and  renting  for  eighty 
dollars  a  year,  in  consideration  that  the  vendee  would  be- 
come his  bail,  and  pay  him  the  annual  sum  of  one  hundred 
dollars  during  his  life,  and  there  was  no  proof  of  fraud  in 
the  transaction,  it  was  held  that  there  was  not  such  inade- 
quacy as  to  be  a  ground  for  setting  aside  the  conveyance.' 

§  181.  Distinction  between  too  small  and  too  great  a 
price. — Inadequacy  of  consideration  in  contracts  for  sale 
may  l)e  either  in  the  purchase  money  or  in  the  subject  mat- 
ter of  the  sale.  In  other  cases  of  contract  it  may  consist 
in  the  inequality  of  that  to  which  the  contract  has  refer- 
ence.'' The  questions  as  to  the  inadequacy  of  the  price  set 
up  by  the  vendor  and  as  to  its  excess  set  up  by  the  pur- 
chaser are  very  different.  Inadequacy  can  be  ascertained 
by  comparison  with  the  general  market  value  of  similar 
property.  But  the  court  has  apparently  no  satisfactory 
means  of  pronouncing  a  price  excessive,  or,  in  other  words, 
of  determining  what  represents  the  money  value  of  prop- 
erty to  an  individual ;  there  being  no  standard  by  which 
such  value  can  be  fixed.  The  fact  that  the  purchaser  en- 
tered into  the  contract  voluntarily  and  with  full  knowl- 
edge, may  not  unreasonably  be  regarded  as  determining 
the  real  value  of  the  property  to  him  at  the  time  of  the 
agreement,  whatever  may  be  its  value  to  others,  and  how- 
ever much  the  value  to  the  purchaser  himself  may  have 
been  changed  by  subsequent  events.' 

§  182.  What  to  be  sJiown  to  constitute  a  defence. — It  may 
be  laid  down  then  as  a  general  proposition,  not  only  con- 
sonant with  the  decisions,  but  the  only  safe,  reasonable, 
and  just  rule  which  could  be  adopted,  that  inadequacy  of 
consideration,  in  order  to  constitute  a  defence  to  a  suit  for 
specific  performance  brought  against  the  vendor,  must  be 
shown  to  have  resulted  from  fraud,  surprise,  misrepresenta- 
tion, or  concealment   on  the   part   of  the   purchaser;^  or 

1  Knobb  V  Lindsay,  5  Ohio,  468. 

'  Hamilton  v.  Grant,  3  Dow,  33.  '  Dart's  V.  &  P.,  513. 

*  Lowther  v.  Lowther,  13  Ves.,  113 ;  Wall  v.  Stubbs,  i  Mad.,  81 ;  Cadman  v. 


§    l82.  WHAT  TO  BE  SHOWN  TO  CONSTITUTE  A  DEFENCE.        243 

from  unconscionable  advantage  taken  by  the  purchaser  of 
the  vendor's  weakness  of  mind  or  ignorance.'  And  similar 
proof  is,  of  coui-se,  required  from  the  vendee  when  he  is 
the  defendant.  Where  a  person  in  a  contract  for  the  pur- 
chase of  real  estate  agreed  to  pay  a  sum  for  it  which  was 
twice  its  value,  and  the  transaction  was  free  from  fraud  or 
misrepresentation,  and  he  examined  the  land  himself, 
though  most  of  it  was  at  the  time  covered  with  snow,  it  was 
held  that  the  vendor  was  entitled  to  specific  performance.' 
If  the  vendor  sell  as  trustee,  the  inadequacy  of  price  may 
be  set  up  as  a  defence,  but  not  if  the  price  was  fair,  al- 
though there  was  afterward  an  opportunity  to  sell  for  a 
much  larger  sum."  It  is  competent  for  a  parent  to  enter 
into  an  agreement  with  one  of  his  sons  to  give  him  all  his 
property  in  consideration  of  his  son's  promise  to  support 
his  father  and  mother  as  long  as  they  live ;  and  such  a  con- 
tract, when  not  in  writing,  stands  upon  the  footing  of 
other  parol  contracts  for  a  valuable  consideration.'  The 
good  consideration  of  love  and  affection  may  support  a 
contract  where  the  pecuniary  consideration   is  wholly  in- 

Horner,  18  Ves.,  10;  Western  v.  Russell,  3  V.  &  B.,  187  ;  Lukey  v.  O'Donnel,  2 
Sch.  &  Let".,  471  ;  Robinson  v.  Robinson,  4  Md.  Ch.,  182;  Powers  v.  Hale,  25 
N.  H.,  145 ;  Eastman  v.  Plumer,  46  lb.,  478 ;  Lee  v.  Kirby,  104  Mass.,  420. 

'Davis  V.  Parker,  14  Allen,  94;  Todd  v.  Grove,  33  Md.,  188.  "Inadequacy 
of  consideration  becomes  a  most  material  circumstance  when  one  of  the  parties 
to  a  transaction  is  from  age,  ignorance,  distress,  incapacity,  weakness  of  mind, 
body,  or  disposition,  or  from  humble  position  or  other  circumstances  unable  to 
protect  himself.  In  all  such  cases,  whatever  be  the  nature  of  the  transaction, 
the  onus  of  proof  rests  on  the  party  who  seeks  to  uphold  it,  to  show  that  the 
other  performed  the  act,  or  entered  into  the  transaction  voluntarily  and  deliber- 
ately, knowing  its  nature  and  effect,  and  that  his  consent  to  perform  the  act  or 
become  a  party  to  the  transaction,  was  not  obtained  by  reason  of  any  undue 
advantage  taken  of  his  position,  or  any  undue  influence  exerted  over  him.  The 
mere  fact,  however,  that  one  of  the  parties  may  be  an  illiterate  person,  or  a  man 
of  advanced  age,  or  may  be  in  bad  health,  or  in  distress  or  pecuniary  embarrass- 
ment, will  not  vitiate  a  transaction,  although  it  may  have  been  founded  on  an 
inadequate  consideration  and  no  independent  advice  may  have  been  had,  if  it 
appear  on  the  face  of  the  evidence  that  he  was  fully  competent  to  form  an  inde- 
pendent judgment  m  the  matter,  and  became  a  party  to  the  transaction  deliber- 
ately and  advisedly,  knewing  its  nature  and  effect."  Kerr  on  Fraud,  189,  190. 
We  have  seen,  ante,  §  178,  that  in  cases  of  sales  of  reversionary  interests,  the  bur- 
den of  showing  adequacy  of  price  is  on  the  purchaser. 

-  White  V.  McGannon,  29  Gratt.,  511. 

'  Goodwin  v.  Fielding,  4  De  G.  M.  &  G.,  90. 

^  Lester  v.  Lester,  28  Gratt.,  ^yj  ;  Lorentz  v.  Lorentz,  14  W.  Va.,  761. 


244  INADEQUACY,    ETC.,    OF    CONSIDERATION.  §    182. 

adequate  compared  with  the  value  of  the  property ; ' 
though  cases  sometimes  arise  in  which  inadequacy  in  con- 
tracts between  near  relatives,  from  the  superiority  pos- 
sessed by  one  of  the  parties  over  the  other,  may  give  rise 
to  the  presumption  of  improper  influence,  and  thus  furnish 
a  defence  to  a  suit  for  specific  performance,  A  release 
from  a  son  to  his  father  was  set  aside,  where  the  son  was 
turned  out  of  doors  and  left  destitute.  "  Suppose,"  said 
the  court,  "the  plaintiff  had  been  entitled  to  a  tenancy  in 
tail  of  real  estate,  and  the  father,  a  bare  tenant  for  life,  had 
taken  such  advantage  of  his  son's  necessities  to  draw  him 
to  join  in  any  conveyance  which  would  destroy  his  re- 
mainder, this  court,  upon  very  slender  evidence  of  such  a 
practice  in  a  father,  has  relieved  the  son.""'  A  conveyance 
of  real  estate  worth  more  than  nine  thousand  dollars  by  a 
father  seventy-four  years  of  age,  his  wife  being  nearly  sev- 
enty years  of  age  and  in  delicate  health,  to  his  two  sons, 
taking  from  the  sons  a  bond  and  mortgage  to  secure  the 
parents'  maintenance  and  an  annuity  during  their  lives,  the 
sons  having  taken  advantage  of  their  father's  age,  imbecil- 
ity, and  partiality  for  them,  was  held  void.'  Inadequacy 
of  consideration,  which  would  not  be  a  ground  for  setting 
aside  an  executed  contract,  may  induce  the  court  to  decline 
to  decree  specific  performance.'  The  question  of  inade- 
quacy would  seem  to  be  excluded,  when  at  the  time  of  the 
contract  neither  party  has  any  knowledge  of  the  value  of 
the  property.' 

'  Whalley  v.  Whalley,  i  Men,  446  ;  Shepherd  v.  Bevin,  9  Gill,  32. 

"^  Heron  v.  Heron,  2  Atk.,  161,  per  Lord  Hardvvicke. 

*  Whelan  v.  Whelan,  3  Cowen,  537. 

"  Vigers  v.  Pike,  8  CI.  &  Fin.,  645  ;  Playford  v.  Playford,  4  Hare,  546  ;  Osgood 
V.  Franklin,  2  Johns.  Ch.,  i  ;  i  Sug.  V.  &  P.,  276.  "A  party  who  complains 
that  he  has  been  wronged,  and  brings  a  bill  on  such  ground,  must  make  out  a 
clear  case  before  he  can  expect  a  decree  to  cancel  his  own  deed.  If,  however, 
he  repents  before  the  execution  of  the  contract,  and  stands  upon  the  defensive, 
he  may  have  all  the  advantage  of  his  adversary's  weakness  as  well  as  of  his  own 
strength.  But  whether  the  vendor  comes  into  court  as  defendant  or  as  plaintiff 
before  the  conveyance  or  afterward,  a  gross  inadequacy  of  price  is  some  evidence 
of  fraud,  and  if  fraud  is  satisfactorily  proved,  it  makes  a  deed  void  as  readily  as 
articles  of  agreement."     Black,  C.  J.,  in  Davidson  v.  Little,  22  Pa,  St.,  245. 

'  Knight  V.  Majoribanks,  1 1  Beav.,  322  ;  Affd.  2  Mac.  &  G.,  10.  See  i  Sug. 
V.  &  P.,  295. 


§§    183,    184.       INADEQUACY    OF    BID    AT    PUBLIC    SALE.  245 

§  183.  Objection  that  pi'- ice  was.  excessive  how  regarded, 
— Cases  of  alleged  excess  of  price,  present  strong  grounds 
for  refusing  specific  performance,  or  for  the  interference  of 
the  court  in  setting  aside  the  transaction,  when  there  has 
been  fraud,  misrepresentation,  concealment,  oppression,  or 
even  ignorance/  So,  although  when  the  contract  is  free 
from  imposition,  the  fact  that  the  price  is  excessive  will 
not  in  itself  constitute  a  defence,  yet  such  excess  may  be 
taken  into  consideration  by  the  court  in  connection  with 
other  circumstances,  in  determining  whether  or  not  to 
grant  relief/  Thus,  a  sale  of  land  was  set  aside  where  the 
consideration  was  about  ten  times  the  value  of  the  land, 
and  the  purchase  made  the  condition  of  a  loan  which  the 
plaintiff  was  very  anxious  to  negotiate  in  order  to  prose- 
cute his  claim  in  chancery  to  some  valuable  property,  he 
being  poor  and  illiterate.  "Coupled  with  such  circum- 
stances, the  evidence  of  over-price  is  of  great  weight." ' 

§  184.  Inadequacy  of  bid  at  public  sale. — Although  in- 
adequacy of  price  is  not  sufficient  of  itself  to  set  aside  a 
judicial  sale,  yet  such  inadequacy  may  be  a  controlling  ele- 
ment in  connection  with  other  circumstances."  When  the 
sale  is  fairly  conducted,  the  court  will  not  refuse  to  enforce 
specific  performance  without  strong  proof  of  fraud  or  im- 
position.' At  a  sheriff's  sale,  notes  to  the  amount  of  two 
hundred  and  sixty  thousand  dollars  secured  by  mortgage 
were  purchased  by  the  complainant  for  six  hundred  dol- 

'  Deane  v.  Rastron,  i  Ans.,  64  ;  Young  v.  Clarke,  Prec.  Ch.,  538  ;  Lewis  v. 
Lord  Lechmere,  10  Mod.,  503. 

Cathcart  v.  Robinson,  5  Pet.,  263. 

'  Cockell  V.  Taylor,  15  Beav.,  103,  115,  per  Sir  John  Romilly, 

*  Benton  v.  Shreeve,  4  Ind.,  66. 

^  In  an  early  case,  property  having-  been  sold  at  auction  for  about  half  its 
value,  Lord  Rossiyn  refused  specific  performance.  But  Lord  Eldon,  on  a  re- 
hearing, expressed  the  opinion  that  a  sale  at  auction  could  not  be  set  aside  for 
mere  inadequacy  of  price.  White  v.  Damon,  7  Ves.,  30  ;  and  see  Underbill  v. 
Horwood,  10  lb.,  209.  This  is  now  well  settled.  Burrowes  v.  Lock,  10  Ves., 
470;  Lowther  v.  Lowther,  13  lb.,  103;  Collier  v.  Brown,  i  Cox,  428;  Bower  v. 
Cooper,  2  Hare,  408  ;  Borell  v.  Dann,  lb.,  450  ;  Griffith  v.  Spratley,  2  Bro.  C. 
C,  179;  S.  C,  I  Cox,  383  ;  Stephens  v.  Hotham,  i  K.  &  J.,  571  ;  Russell  v.  Stim- 
son,  3  Hayw.  Tenn.,  i  ;  Newman  v.  Meek,  i  Freem.  Miss.  Ch.,  141  ;  Delafield  v. 
Anderson,  7  Smed.  &  M.,  630;  Ready  v.  Noakes,  29  N.  J.  Eq.,  497. 


246  INADEQUACY,    ETC.,    OF    CONSIDERATION.  §    ^^S- 

lars.  On  the  filino;  of  a  bill  in  equity  praying  for  specific 
performance  of  the  contract  of  sale,  and  a  demurrer  there- 
to, which  was  sustained  by  the  U.  S.  circuit  court,  this 
decision  was  reversed  by  the  U.  S.  supreme  court.  The 
execution  sale  was  admitted  by  the  demurrer  to  have  been 
open  to  competition,  regular  and  fair.  Catron,  J.,  who  de- 
livered the  opinion  of  the  supreme  court,  stated  in  conclu- 
sion, that  the  complainant  had  made  out  di  p7-ima  facie  C2ise 
for  a  decree,  and  that  it  was  the  duty  of  the  respondents, 
if  they  meant  to  defend,  to  answer,  and  show,  if  they 
could,  that  no  relief  ought  to  be  granted  ;  or,  if  any,  to 
what  modified  extent,  compared  with  the  entire  relief 
prayed.' 

§  185,  When  inadequacy  must  have  existed. — The  ques- 
tion as  to  the  inadequacy  of  the  consideration  must  be 
determined  with  reference  to  the  time  the  agreement  was 
made.  It  has  accordingly  been  held,  that  where  an  annuity 
for  life  forms  part  of  the  consideration,  and  the  life  termi- 
nates before  any  payment,  this  does  not  necessarily  render 
the  consideration  inadequate."  Where  real  estate  worth 
six  thousand  dollars  in  gold,  w^as  sold,  during  the  Southern 
rebellion,  for  ten  thousand  dollars,  payable  in  Confederate 
money,  payment  made,  and  receipts  therefor  given  by  the 
vendor  ;  and  the  value  of  the  Confederate  money  when 
paid  was,  in  gold,  three  hundred  and  eighty-five  dollars, 
upon  a  bill  filed  by  the  vendee  after  the  termination  of  the 
war  for  specific  performance,  the  only  defence  being  that 


'  Erwin  v.  Parham,  12  How.,  197.  Nelson,  J.,  dissenting-,  said  :  "  Tlie  inade- 
quacy of  consideration  is  far  beyond  that  of  any  case  that  has  come  under  my 
observation  in  the  course  of  this  examination,  and  is  such  as  to  shock  the  com- 
mon sense  of  mankind.  In  many  of  the  cases  in  which  the  court  has  refused 
to  interfere  mainly  on  the  ground  of  inadequacy  of  price,  only  half  the  value 
had  been  agreed  to  be  given.  That  was  considered  as  sufficient  evidence  of  a 
hard  and  unconscionable  bargain  to  induce  the  court  to  pause  when  its  extra- 
ordinary powers  were  invoked  to  the  aid  of  the  party  seeking  to  realize  the 
advantage  of  the  contract,  and  turn  him  over  to  a  court  of  law.  The  complain- 
ant in  this  case  is  not  without  a  remedy.  If  he  has  got  a  legal  right,  he  can  go 
into  a  court  of  law  and  enforce  it.  But  I  do  not  think  it  a  fit  case  for  the  inter- 
position of  a  court  of  equity."     See  Byers  v.  Surget,  19  How.,  309. 

^  Mortimer  v.  Capper,  i  Bro.  C.  C,  156. 


§    1 86.        DEFENCE    FROM    WANT    OF    CONSIDERATION.  247 

of  inadequacy  of  price,  it  was  held  that  the  plaintiff  was 
entitled  to  a  decree.  The  court  said  :  "  To  determine  whether 
the  consideration  was  adequate,  and  whether  the  court  can 
now  refuse  to  decree  specific  performance  of  the  contract 
on  the  ground  of  inadequacy  of  consideration,  we  must 
carry  ourselves  back  to  the  date  of  the  contract,  and  the 
time  when  the  purchase  money  was  paid.  If  at  that  time 
the  consideration  would  have  been  deemed  adequate,  and 
the  court  would  have  decreed  a  specific  execution  of  the 
contract  had  this  suit  then  been  brought,  it  follow^s,  I  think, 
necessarily,  that  the  consideration  must  now  be  deemed 
adequate,  and  the  court  must  now  decree  such  specific  exe- 
cution." ' 

§  186.  Defence  from  want  of  consideration. — Contracts 
which  are  voluntary,  or  where  there  is  no  consideration  on 
the  part  of  him  v/ho  seeks  performance,  will  not  be  specifi- 
cally enforced,  although  under  seal,  whether  the  contract  be 
in  the  form  of  an  agreement,  a  covenant,  or  a  settlement.' 

'  Hale  V.  Wilkinson,  ?.\  Gratt.,  75.  Where,  however,  a  vendor  contracted  to 
convey  land  for  a  certain  sum  in  Confederate  money,  which  became  worthless 
before  the  contract  was  completed  and  the  money  paid,  the  court  refused  a  de- 
cree for  specific  performance,  although  the  plaintiff  offered  to  pay  what  the  Con- 
federate notes  were  worth  at  the  time  of  the  contract.  Love  v.  Cobb,  63  N. 
C,  324.  See  Hudson  v.  King,  2  Heisk,  561  ;  McCarty  v.  Kyle,  4  Cold.,  349. 
Specific  performance  will  be  refused,  where  the  price  is  rendered  inadequate  by 
the  laches  of  the  complainant.  Whitaker  v.  Bond,  65  N.  C,  290.  A  grantor 
who  receives  a  draft  drawn  by  the  grantee  upon  a  third  person  as  a  considera- 
tion for  his  agreement  to  convey,  must  use  ordinary  diligence  to  collect  the 
draft,  and  unless  he  does,  he  cannot  successfully  defend  himself  against  a  bill 
for  specific  performance  on  the  ground  of  want  of  consideration.  Woodcock  v. 
Bennet,  i  Cowen,  711.  Where  the  vendor,  alter  entering  into  the  contract,  de- 
clared himself  satisfied,  the  court  decreed  specific  performance.  Woodruff  v. 
Hargrave,  Wright,  555  ;  also,  where  notwithstanding  the  consideration  of  a  con- 
tract for  the  sale  of  land  was  inadequate,  the  vendor,  with  full  knowledge  of  the 
facts,  refused  to  rescind.     Galloway  v.  Barr,  12  Ohio,  354, 

'^  Groves  v.  Groves,  3  Y.  &  J.,  163  ;  Houghton  v.  Lees,  1  Jur.  N.  T.,  862 ;  Ord 
V.  Johnston,  lb.,  1063;  Jeffreys  v.  Jeffreys,  Cr.  &  Ph.,  138;  Hervey  v.  Audland, 
14  Sim.,  531  ;  Moore  v.  Crofton,  i  Jones  &  Lat.,  442  ;  Kennedy  v.  Ware,  i  Pa. 
St..  445  ;  Mercer  v.  Stark,  Walk,,  Miss.,  451  ;  Forward  v.  Armistead,  12  Ala.,  124  ; 
Morris  V.  Lewis,  33  lb.,  53  ;  Black  v.  Cord,  2  Har.  &  Gill,  100;  Ormsby  v.  Hun- 
ton,  3  Bibb.,  298  ;  Darlington  v.  McCoole,  I  Leigh,  Va.,  36;  Buford  v.  McKee, 
I  Dana,  107  ;  Holland  v.  Hinsley,  4  Iowa,  222  ;  Shepherd  v.  Shepherd,  i  Md. 
Ch.,  244;  Vasser  v.  Vasser,  23  Miss  ,  378  ;  .Short  v.  Price,  17  Te.xas,  397  ;  Tom- 
linson  v.  York,  20  lb,,  694.  But  see  Taylor  v.  James,  4  Dessaus  Eq.,  5  ;  Cald- 
well V.  Williams,  i  Bailey  Eq.,  175;  Mclntire  v.  Hughes,  4  Bibb.,  186;  Cabeen 
V.  Gordon,  i  Hill,  S.  C.  Ch.,  51  ;  Webb  v.  Alton,  etc.,  Ins.  Co..  10  III.,  225; 
Lear  v.  Chouteau,  23  lb.,  39  ;  Andrews  v.  Andrews,  28  Ala.,  432  ;  Hayes  v.  Ker- 


248  INADEQUACY,    ETC.,    OF    CONSIDERATION.  §    1 86. 

A.  and  B..  who  owned  adjoining  lands,  entered  into  an 
agreement,  each  to  lay  out  a  road  over  his  own  land,  and 
then  B.  agreed  to  convey  to  A.  twenty  feet  of  land,  de- 
scribing it.  On  a  bill  by  A.  against  B.  for  the  specific  per- 
formance of  B.'s  agreement  to  convey  the  land,  it  was  held 
that  there  was  no  sufficient  consideration  to  support  the 
agreement,  as  it  did  not  appear  that  the  laying  out  of  the 
road  was  in  any  way  the  inducement  to  such  agreement  of 
B.'  A  minor  purchased  his  time  of  his  father,  and  subse- 
quently entered  a  tract  of  land  in  his  own  name,  with  a  land 
warrant  bought  solely  with  his  own  earnings.  The  son,  by 
a  parol  promise  unsupported  by  any  consideration,  agreed 
to  convey  to  the  father  one-half  of  the  tract  on  the  son  ar- 
riving at  maturity.  It  was  held  that  the  father  could  not 
enforce  a  specific  performance,  although  he  had  contributed 
money  and  labor  toward  improvements  on  the  land,  and 
resided  on  it  with  his  son.'  Equity  will  not  assist  in  per- 
fecting a  voluntary  contract  to  create  a  trust,  nor  regard  it 
as  binding  so  long  as  it  remains  executory,'    An  agreement 

show,  I  Sandf.  Ch.,  261  ;  Burling  v.  King,  66  Barb.,  633 ;  Saunders  v.  Simpson, 
2  Har.  &  Johns.,  81  ;  Wyche  v.  Greene,  16  Ga.,  49.  Where  there  was  no  con- 
sideration for  the  extension  of  an  agreement  for  a  lease  at  a  low  rent,  the  court 
refused  to  extend  the  term.  Robson  v.  Collins,  7  Ves.,  133:  In  another  case, 
the  plaintiff  had  given  a  bond  for  twelve  hundred  pounds  to  a  person  who,  by  an 
indorsement  on  the  bond,  forgave  him  a  portion  of  the  money  due.  The  execu- 
tors of  the  obligee  having  brought  an  action  on  the  bond,  the  vice-chancellor  re- 
fused to  restrain  it,  saying  that  the  plaintiff  gave  no  consideration  for  the  alleged 
release,  and  that,  as  he  was  a  volunteer,  he  had  no  right  to  come  into  equity  for 
relief.  Tufnell  v.  Constable,  8  Sim.,  69.  Where  creditors  entered  into  an  agree- 
ment to  receive  a  portion  of  their  debt  in  satisfaction  of  the  whole,  the  court  re- 
fused to  decree  specific  performance.  Acker  v.  Phoenix,  4  Paige  Ch.,  305.  It  is 
well  settled  that  payment  by  the  debtor  of  a  less  sum  of  money  than  the  real  debt 
forms  no  valid  consideration  for  an  agreement  to  discharge  the  residue.  And 
such  an  agreement  will  be  no  satisfaction  of  the  larger  sum  unless  it  is  under 
seal,  which  imports  a  consideration.     Harrison  v.  Close,  2  Johns.,  448. 

'  Dodd  V.  Seymour,  21  Conn.,  476.  Although  equity  may  enforce  performance 
of  a  deed  defectively  executed,  as  an  agreement  to  convey,  yet  it  will  refuse  to 
enforce  it  where  it  appears  to  have  been  made  without  consideration;  and  this 
tact  may  be  shown  by  parol.  Hanson  v.  Michelson,  19  Wis.,  498.  In  Maryland 
specific  performance  of  an  agreement  for  the  purchase  of  land  with  Continental 
money,  was  always  refused  as  against  the  vendor,  unless  he  had  agreed  in  writing 
to  convey  for  such  sum  as  the  chancellor  should  think  right,  or  unless  the  cir- 
cumstances of  the  case  were  such  as  to  render  a  decree  essential  to  justice. 
Lawrence  v.  Dorsey,  4  Har.  &  McHen.,  205;  Hopkins  v.  Stump,  2  Har.  &  J., 
301.     But  see  Chaplin  v.  Scott,  4  Har.  &  McHen.,  91. 

•  Holmes  v.  Holmes,  44  111.,  i68.  ^  Estate  of  Webb,  49  Cal.,  542. 


§    187.  VALIDITY    OF    GIFTS    OF    LAND.  249 

by  the  wife  to  convey  land  in  consideration  of  an  antece- 
dent debt  of  the  husband,  is  not  such  an  agreement  as  will 
be  specifically  enforced.'  But  a  voluntary  settlement  may 
be  enforced  at  the  instance  of  a  child  against  the  heir,  if  the 
volunteer  has  the  preferable  equity.'  A  judicial  sale  is  at- 
tended with  the  same  reciprocal  rights  between  the  parties 
as  exist  in  a  private  contract  of  sale.  And,  in  each  case,  the 
title  being  retained,  specific  performance  will  not  be  en- 
forced unless  a  valuable  consideration  be  paid,  or  offered  to 
be  paid,  at  or  before  the  time  of  the  decree.^  With  reference 
to  the  consideration  there  is  a  distinction  between  executory 
contracts  or  promises  which  rest  in  fieri,  and  those  agree- 
ments which  are  executed  ;  the  one  class  being  enforceable 
only  when  founded  on  a  valuable  consideration,  and  the 
other  requiring  no  consideration,  or  only  a  meritorious  one. 
A  court  of  equity  will  therefore  compel  the  grantor  in  a 
voluntary  deed,  to  whom  it  was  delivered  after  execution 
for  safe  keeping,  and  by  whom  it  was  lost,  to  execute 
another  deed  of  the  same  import.* 

§  1 87.  Validity  of  gifts  of  land. — A  gift  of  real  estate  will 
be  enforced  with  great  caution,  and  not  in  general  unless 
the  donee  has  taken  possession  and  made  improvements  on 
the  faith  of  the  gift.'     When  he  does  this,  it  constitutes  a 

•  Bayler  v.  Com,  40  Pa.  St.,  27. 

*  Haines  v.  Haines,  6  Md.,  435.  By  an  ante-nuptial  agreement  executed  by 
the  intended  husband  and  wife,  and  the  wife's  parents,  the  latter  agreed  to  ap- 
point a  share  of  certain  real  estate  (which  was  subject  to  their  life  interest,  and 
to  the  appointment  of  them  and  the  survivor  of  them)  to  the  wife,  the  husband 
agreeing  to  settle  his  wife's  reversionary  share  upon  the  usual  trusts  for  husband 
and  wife  and  their  children.  The  wife's  mother  having  died,  the  father  released 
the  power  and  granted  the  estate  to  take  effect  after  his  death,  giving  his  daughter 
a  share.  The  wife  died  before  her  husband,  leaving  two  children.  The  property 
being  still  reversionary,  a  suit  was  brought  by  the  husband  and  one  of  the  chil- 
dren against  the  other  child,  the  wife's  heir  at  law,  for  specific  performance  of 
the  agreement.  It  was  held  that  the  agreement  to  settle  this  particular  property 
was  clearly  binding  on  the  wife,  she  having  assented  by  being  a  party  to  it,  and 
equally  so  on  her  heir  at  law,  and  that,  therefore,  there  must  be  judgment  for  the 
plaintiffs.     Lee  v.  Lee,  L,  R.  4,  Ch.  D.  175. 

^  Burgin  v.  Burgin,  82  N.  C,  196.  An  executor}'  contract,  founded  on  an  ille- 
gal or  void  consideration,  will  not  be  enforced.  Piatt  v.  Maples,  19  La.  An.,  409  ; 
Paton  v.  Stewart,  78  III,  481  ;  Butman  v.  Porter,  100  Mass.,  337. 

^  Hodges  V.  Spicer,  79  N.  C,  223. 

'Callaghan  v.  Callaghan,  8  CI.  &  Fin.,  374;  Ballard  v.  Ward,  89  Pa.  St.,  358. 


250  INADEQUACY,    ETC.,    OF    CONSIDERATION.  §    1 87. 

valuable  consideration  on  which  to  ground  a  claim  for  spe- 
cific performance/  Where  complainants  alleged  a  gift  of 
real  estate  from  defendant's  testator  to  complainants'  testa- 
tor, in  consideration  of  natural  love  and  affection,  and  that 
the  donee  pursuant  to  said  gift  went  into  possession  of  the 
premises,  made  large  improvements  thereon,  and  finally  died 
in  possession  thereof,  it  was  held  that  to  entitle  the  com- 
plainants to  a  decree,  there  must  be  conclusive  proof  of  the 
gift,  and  satisfactory  evidence  explaining  why  the  gift  was 
not  consummated  by  a  conveyance/  Where,  how^ever,  the 
plaintiff's  brother,  intending  to  give  the  plaintiff  certain 
lands,  executed  a  contract  for  the  sale  and  conveyance  of 
the  same  to  her,  she  agreeing  to  pay  eleven  hundred  dollars, 
but  it  was  never  intended  that  she  should  pay  anything,  and 
subsequently  a  receipt  in  full  for  the  purchase  price  was 
indorsed  by  the  vendor  upon  the  contract,  though  no  money 
w^as  in  fact  paid,  it  was  held  that  the  receipt  operated  as  a 
valid  and  complete  gift  of  the  debt,  leaving  the  right  of  the 
plaintiff  to  a  conveyance  in  force,  as  if  the  debt  had  been 
paid/  Although  a  court  of  equity  will  not  give  effect  to  an 
imperfect  gift,  yet  where  a  trust  is  created,  either  by  the 
owner  of  the  property  declaring  himself  to  be  a  trustee  of 
it,  or  by  his  making  a  complete  transfer  of  it  to  another  as 


See  Evans  v.  Battle,  19  Ala.,  398  ;  Cox  v.  Cox,  59  lb.,  591,  post,  §  284;  and  see 
the  qualitication  of  this  rule  as  stated, /fj/,  §271. 

'  Guynn  v.  McCauley,  32  Ark.,  97. 

^  Jones  V.  Taylor,  6  Mich.,  364.  As  between  father  and  child,  the  evidence  of 
a  parol  g-ift  or  sale  should  be  direct,  positive,  express,  and  unambiguous,  its  terms 
clearly  defined,  and  all  the  acts  necessary  to  its  validity  have  special  reference  to 
it  and  to  nothing  else. 

^  Ferry  v.  Stephens,  66  N.  Y.,  321.  In  the  foregoing  case,  the  New  York  special 
term  dismissed  the  suit  on  the  ground  that  as  there  was  a  mere  voluntary  execu- 
tory promise  to  give  land  to  the  plaintiff,  specific  performance  of  the  contract 
could  not  be  enforced.  The  court  of  appeals,  per  Andrews,  J.,  in  affirming  the 
judgment  of  the  general  term  reversing  this  decision  and  ordering  a  new  trial, 
said :  "  The  payment  of  the  purchase  money  by  the  plaintiff,  was  made  by  the 
agreement  a  condition  precedent  to  the  obligation  of  the  vendor  to  convey  the 
land ;  and  the  plaintiff,  in  order  to  entitle  herself  to  specific  performance  of  the 
contract,  was  bound  to  show  that  payment  in  fact  had  been  made,  or  that  her 
promise  to  pay  the  purchase  money  had  in  some  way  been  satisfied.  It  is  con- 
ceded that  tiiere  was  no  actual  payment  of  any  part  of  the  consideration.  The 
plaintiff,  to  maintain  her  right  of  action,  relies  upon  the  fact  that  her  brother, 


§    1 88.  WHAT    DEEMED    A    CONSIDERATION.  25 1 

trustee,  the  court  will  enforce  the  trust  against  the  trustee 
in  favor  of  volunteers.' 

§  188.  What  deemed  a  co7iside7'ation. — Although  to  en- 
title a  person  to  specific  performance  the  contract  must  in 
general  be  upon  a  valuable  consideration,  yet  the  considera- 
tion need  not  be  a  full  equivalent.  It  is  sufficient  if  some 
profit  is  to  inure  to  the  promissor,  or  some  detriment  to  be 
sustained  by  the  promisee."     If  a  person  is  prevented  from 

about  a  month  after  the  contract  was  made,  indorsed  upon  it  a  receipt  in  full  of 
the  purchase  price.  The  judge  also  found  that  the  plaintiff's  brother,  when  the 
contract  was  made,  intended  to  give  her  the  land,  and  that  the  consideration 
was  inserted  to  conceal  this  intention  from  other  relatives,  and,  in  connection 
with  the  finding  that  the  receipt  was  subsequently  indorsed  on  the  contract,  he 
finds  that  it  was  never  intended  that  any  payment  should  be  made  thereon. 
These  findings,  taken  together,  are  equivalent  to  findmg  that  the  vendor,  to 
accomplish  his  purpose  to  give  the  land  to  his  sister,  gave  her  the  debt  which 
represented  his  interest  in  the  land.  He  became,  on  the  execution  of  the  con- 
tract of  sale,  a  trustee  for  the  plaintiff  of  the  land,  having  a  lien  for  the  purchase 
money,  and  she  became  his  debtor  for  the  consideration.  That  the  receipt  was 
intended  as  a  gift  of  the  debt,  is  clearly  inferable  from  the  facts  found.  His 
primary  intention  was  to  give  her  the  land.  The  gift  of  the  debt  would  not  give 
her  the  legal  title,  but  it  gave  her  the  whole  beneficial  interest,  provided  it  oper- 
ated as  a  legal  satisfaction  of  her  promise.  The  position  of  the  general  term, 
that  when  the  lien  of  the  vendor  under  a  contract  for  the  sale  of  land,  for  the 
purchase  money,  is  extinguished  by  payment,  or  by  what,  as  respects  the  vendor, 
was  equivalent  to  payment,  he  becomes  a  naked  trustee,  and  is  bound  to  convey 
to  the  vendee  the  legal  title,  admits  of  no  controversy.  There  was  no  intention, 
in  giving  the  receipt,  that  the  vendor  should  be  discharged  from  his  promise.  It 
states,  that  the  money  expressed  therein  was  received  to  apply  on  the  contract. 
Whether  the  giving  of  a  receipt  for  the  debt  was  effectual  to  confer  the  benefit 
intended,  is  a  question  of  law  ;  but  it  is  clear  from  the  facts,  that  the  receipt  was 
intended  to  operate  as  a  forgiving  and  satisfaction  of  the  plaintiff's  obligation 
under  the  contract,  so  as  to  leave  the  right  of  the  plaintiff  to  a  conveyance,  in 
force  as  if  the  debt  had  been  paid.  The  case,  therefore,  comes  to  this  single  ques- 
tion, viz,  was  there  a  vahd  gift  of  the  debt  to  the  plamtiff  by  her  brother  ?  The 
case  of  Gray  v.  Barton,  55  N.  Y.,  68,  is  decisive  authority  for  the  plaintiff  on 
this  question.  The  plaintiff  does  not,  in  this  case,  seek  the  aid  of  the  court  to 
perfect  an  incomplete  gift.  The  gift  of  the  debt  was  complete  upon  the  execu- 
tion of  the  receipt.  The  vendor's  purpose  of  giving  the  land  has  never  been 
executed,  only  so  far  as  it  results  from  his  giving  the  plaintiff  the  debt  for  the 
purchase  money.  The  plaintiff's  obligation  under  the  contract  has  been  satis- 
fied. The  only  unperformed  stipulation  remaining,  is  that  of  the  vendor  to  con- 
vey the  land,  and  this  action  is  brought  to  enforce  that  stipulation." 

'  Kelly  v.  Walsh,  L.  R.,  Jr.  Ch.  D.,  275. 

*  Curlin  v.  Hendricks,  25  Texas,  225.  A.,  upon  being  applied  to  by  B.  and  C, 
agreed  to  grant  them  a  lease  of  a  supposed  vein  of  seam  coal  called  the  S.  vein, 
"about  two  feet  thick,  with  the  overlying  and  underlying  beds  of  clay,"  on  and 
under  a  certain  farm,  at  one  hundred  pounds  a  year  as  certain  or  dead  rent,  and 
royalties  at  nine  pence  per  ton  for  the  coal  and  four  pence  per  ton  for  the  clay  ; 
the  lessees  to  have  any  part  of  the  farm  at  the  rent  of  ten  pounds  per  acre,  and 
to  expend  not  less  than  five  hundred  pounds  in  the  erection  of  a  manufactory 
and  buildings  for  the  purpose  of  working  the  coal  and  clay.  In  a  suit  by  A.  for 
specific  performance,  it  was  claimed  on  the  part  of  the  defence  that  the  S.  vein 


252  INADEQUACY,    ETC.,    OF    CONSIDERATION.  §    188. 

performing-  an  intended  act,  or  omits  to  make  certain  ar- 
rangements, provisions,  or  gifts,  by  will  or  otherwise,  for 
other  persons  by  reason  of  the  promise  of  another,  equity 
will  decree  specific  performance  of  such  promise.'  Where 
a  parol  license  was  given  without  consideration,  allowing 
the  person  licensed  to  divert  a  stream  of  water,  and  the 
licensee  erected  obstructions  diverting  the  water,  and  ex- 
pended large  sums  in  building  a  saw-mill  which  would  be 
of  much  less  value  without  such  diversion,  and  the  licenser 
removed  the  obstructions,  it  was  held  that  equity  would 
compel  the  specific  performance  of  the  license.''  A  written 
contract  made  before,  and  in  consideration  of,  marriage,  is 
such  a  contract  as  the  court  will  aid  in  enforcing."  A  con- 
troversy having  arisen  between-  parties  concerning  a  will, 
and  an  agreement  of  compromise  entered  into,  specific  per- 
formance was  decreed  without  inquiry  into  the  sufficiency 
of  the  consideration.' 


was  not  under  the  farm,  and  evidence  was  given  that  it  could  not  be  found, 
while  the  plaintiff  insisted  that  no  sufficient  search  had  been  made.  Bacon,  V, 
C,  in  holding  that  the  plaintiff  was  entitled  to  a  decree  for  specific  performance, 
and  to  an  order  for  the  payment  of  the  dead  rent  which  had  accrued  up  to  that 
time,  stated  the  grounds  of  his  decision  thus  :  "  I  think  that  the  thing  bargained 
for  was  simply  the  right  to  go  upon  the  land  and  search  for  and  get  minerals, 
and  make  such  a  use  of  it  as  they  thought  fit.  They  knew  the  hazard  attending 
it,  and  knowing  it,  they  protected  themselves  by  having  the  lease  made  deter- 
minable at  the  end  of  three  years They  have  tried  experiments  which 

appear  not  to  have  been  very  conclusive  (for  one  of  the  witnesses  says  it  was  in 
the  wrong  place),  and  have  not  yet  found  any  coal.  It  would  be  against  reason, 
against  justice,  and  against  the  whole  chain  of  authorities  to  let  the  defendants 
off  their  bargain."     Jefferys  v.  Fairs,  L.  R.  4,  Ch.  D.  448. 

'Mead  v.  Randolph,  8  Texas,  191.  A  representation  made  by  one  party  for 
the  purpose  of  influencing  the  conduct  of  the  other  party  and  acted  on  by  him, 
will  in  general  be  sufficient  to  entitle  him  to  the  assistance  of  the  court  for  the 
purpose  of  realizing  such  representation.  Coles  v.  Pilkington,  L.  R.  19,  Eq. 
174,     See  ante,  §  54. 

-  Rerick  v.  Kern,  14  Serg.  &  Rawle,  267. 

^  Gevers  v.  Wright,  18  N.  J.  Eq.,  330.     See  ante,  §  43. 

''  Leach  v.  Forbes,  1 1  Gray,  506.  Where  land  is  dedicated  to  a  county  on  con- 
dition that  a  certain  town  is  made  the  county-seat,  such  contract  may  be  spe- 
cifically enforced  on  the  county  complying  with  the  condition.  Reese  v.  Lee 
County,  49  Miss.,  639.  A  step-father  agreed  with  his  step-son,  who  was  jjst  of 
age  and  about  to  leave  home,  that  if  he  would  work  the  farm  and  take  care  of 
the  family  he  should  have  a  deed  of  one-half  of  the  farm,  which  agreement  was 
held  to  have  been  distinct  and  definite  as  to  land  and  consideration,  and  that 
upon  a  substantial  performance  of  the  consideration  the  step-son  was  entitled  to 
a  specific  performance  of  the  contract.     Twiss  v.  George,  33  Mich.,  233.  Where 


§§    iSg,    190.  FAILURE    OF    CONSIDERATION.  253 

§  189.  IV/mt  meant  by  a  failure  of  consideration. — 
With  regard  to  the  failure  of  the  consideration  as  a  de- 
fence, it  is  scarcely  necessary  to  say  that  by  this  is  not 
meant  the  non-payment  of  the  purchase  money  according 
to  the  agreement,  the  liability  to  pay,  though  default  be 
made,  being  a  consideration  ;  but  the  failure  of  the  contract 
by  the  occurrence  of  something  which  either  determines 
the  existence  of  the  subject  matter  or  materially  effects  it. 
If  the  subject  matter  be  not  essentially  affected,  though 
there  may  be  a  claim  for  compensation,  the  party  injured 
will  not  be  entitled  to  be  discharged  from  the  contract. 
Events  which,  happening  before  the  conclusion  of  a  con- 
tract, avoid  it,  either  by  determining  the  existence  of  the 
subject  matter  or  materially  affecting  it,  do  not,  properly 
speaking,  terminate  the  contract,  but  prevent  the  contract 
from  arising.' 

§  190.  Faihcre  of  consideration  zvit/i  reference  to  per- 
sonal property. — Where  a  contract  is  entered  into  in  rela- 
tion to  personal  property,  it  is  implied  not  only  that  there 

a  husband  and  wife  accepted  the  offer  of  an  aged  person  in  poor  health,  that  if 
they  would  live  in  a  certain  house  and  give  himself  and  his  nurse  lodging  therein 
and  board,  and  would  take  care  of  him  until  his  death,  he  would  convey  the 
house  to  the  wife,  and  they  fulfilled  their  agreement  with  the  old  man  until  he 
died  nine  months  aftenvard,  and  expended  two  hundred  dollars  in  repairing  the 
house,  on  a  bill  by  them  against  his  heirs  for  specific  performance,  it  v>'as  held 
that  the  consideration  was  sufficient  and  that  a  decree  should  be  granted.  Wat- 
son V.  Mahan,  20  Ind.,  223.  Plaintiff  alleged  that  the  defendant,  in  considera- 
tion of  love  and  affection,  executed  to  his  son  a  deed  of  a  tract  of  land,  which, 
without  being  registered,  was  left  with  the  father  for  safe  keeping,  and  that, 
after  the  son's  death,  the  father  destroyed  the  deed.  The  father,  in  his  answer, 
admitted  the  execution  of  the  deed,  but  stated  that  the  consideration  therefor 
was  an  agreerr.ent  that  the  son  should  support  him  and  his  wife  during  their 
hves,  but  that  such  agreement  was  afterward  rescinded.  Held,  that  as  me  de- 
fendant had  failed  to  make  good  his  defence  by  full  proof,  he  should  be  decreed 
to  convey  the  premises  to  the  heir  of  the  son.  Thomas  v.  Kyles,  i  Jones  Eq., 
302. 

'  W' here  a  contract  was  entered  into  for  the  sale  of  an  estate  in  fee,  in  re- 
mainder, or  an  estate  tail,  a  conveyance  executed,  and  a  bond  given  for  the  pur- 
chase money,  and  it  was  discovered  that  at  the  time  of  the  contract  no  such 
remainder  e?  isted,  the  tenant  in  tail  having  suffered  a  recovery,  the  court  set 
aside  the  contract,  and  ordered  the  bond  to  be  delivered  up  and  repayment  to 
be  made  of  the  interest  which  had  been  paid  on  it.  Hitchcock  v.  Giddings,  4 
Price,  135.  When  a  purchaser  has  an  opportunity  and  is  urged  by  the  vendor  to 
inspect  property  and  ascertain  for  himself  its  value,  and  neglects  to  do  so  and 
there  is  no  fraud,  he  will  not  be  relieved  from  the  purchase  on  the  ground  of 
partial  failure  of  consideration.     Vincent  v.  Berry,  46  Iowa,  571. 


254  INADEQUACY,    ETC.,    OF    CONSIDERATION.  §    1 90. 

is  such  property,  but  that  it  exists  in  the  form,  and  is  of  the 
description,  stated  in  the  contract.  A  person  who  resided 
abroad,  being-  entitled  to  an  annuity  for  his  Hfe,  assigned  it 
in  1847  t:o  certain  trustees  to  be  disposed  of  by  them  for 
his  benefit.  The  plaintiff  entered  into  a  correspondence  by 
letter  with  the  trustees  upon  the  subject  of  the  purchase, 
but  the  terms  of  the  purchase  were  not  finally  settled  until 
the  28th  of  February,  1849.  Upon  the  6th  of  that  month 
the  annuitant  died.  The  purchase  money  was  paid  by  the 
plaintiff  in  ignorance  of  the  fact,  and  was  subsequently  re- 
ceived by  the  executors  of  the  deceased.  It  was  held,  that 
as  at  the  time  of  the  purchase  of  the  annuity  it  had  ceased 
to  exist,  the  plaintiff  was  entitled  to  recover  the  purchase 
money  from  the  executrix,  on  the  ground  that  the  money 
had  been  paid  without  consideration.  The  court  said  : 
"  The  question  between  the  parties  is  this,  v/hether  the 
purchase  took  effect  during  the  existence  of  the  annuity. 
If  it  did,  but  for  an  instant,  the  plaintiff  is  not  entitled  to 
succeed  ;  for  he  purchased  the  annuity  and  cannot  complain 
that,  in  so  doing,  he  has  made  a  bad  bargain  as  the  event 
has  turned  out.  But  if,  on  the  contrary,  the  annuity  had 
ceased  to  exist  before  his  purchase,  then  he  has  got  nothing 
for  his  purchase  money,  and  is  entitled  to  recover  it  back 
from  the  defendant.'"  So,  where  an  action  was  brought 
to  recover  the  price  of  a  cargo  afloat,  supposed  to  exist,  and 
to  be  capable  of  transfer,  but  w^hich  had  been  sold  and  de- 
livered by  the  captain  to  others  before  the  contract  of  sale 
was  made  between  the  plaintiff  and  defendant,  it  was  held 
there  could  not  be  a  recovery."  Where  the  plaintiff  sold  a 
clock,  and  a  horse  which  he  warranted,  for  a  harness  and  two 
promissory  notes,  and  the  horse  proved  to  be  worthless,  it 
was  held  that  there  was  such  a  failure  of  consideration  as 
to  authorize  the  defendant  to  rescind  the  entire  contract' 


'  Strickland  v.  Turner,  7  Exch.,  208. 
''  Hastie  v.  Couturier,  9  Exch.,  102;  5  House  of  Lds.,  673. 
'Morrill  v.  Aden,  19  Vt.,  505.     Where  two  agreements  are  contained  in  the 
same  instrument  and  connected  as  counterparts  of  one  mutual  arrangement, 


§    IQI.  WHERE    PROPERTY    IS    SOLD.  255 

But  if  it  unexpectedly  transpire  that  the  chattel,  though  in 
existence  at  the  time  of  the  sale,  was  then  in  an  impaired 
condition,  the  contract  will  notwithstanding  be  binding ; 
as  where  a  ship  at  sea  is  sold,  which  happens  to  be 
stranded,  the  subject  of  the  contract  still  remaining."  Al- 
though, when  the  subject  matter  of  the  contract  has  ceased 
to  exist,  the  impossibility  of  performing  the  agreement 
would  prevent  the  interference  of  equity,  if  on  other 
grounds  it  could  give  relief,  yet  a  person  may  so  contract 
as  to  preclude  himself  from  objecting  the  non-existence  or 
determination  of  the  subject  matter  at  the  time  of  the  con- 
tract." 

§  191.  Where  pi^operty  is  sold  by  oi^dcr  of  court. — A 
question  has  arisen  in  cases  of  sales  by  the  court,  as  to  the 
time  at  which  the  contract  becomes  complete  ;  because 
until  the  report  has  been  confirmed,  the  bidding  may  be  re- 
opened and  a  re-sale  directed.  The  point  to  be  determined 
is,  whether  the  contract  is  concluded  by  the  sale,  sub- 
ject to  be  defeated  by  the  opening  of  the  sale,  in  which 
case  the  contract  will  relate  back  to  the  day  of  sale  ;  or 
whether  it  is  not  concluded  until  it  becomes  absolute  and 
indefeasible  by  confirmation.  The  former  of  these  views 
seems  the  more  reasonable,  and  is  sustained  by  the  weight 
of  authority.' 

each  being  based  upon,  and  forming  to  some  extent  the  consideration  for,  the 
other,  the  failure  of  one  part  of  the  arrangement  will  be  a  sufficient  reason  for 
the  court  to  refuse  to  compel  compliance  with  any  part  of  it.  Butman  v.  Porter, 
100  Mass.,  337. 

'  Barr  v.  Gibson,  3  M.  &  W.,  390. 

-  Hanks  v.  Pulling,  25  L.  J.  O.  B.,  375.  It  is  not  enough  for  the  defendant  to 
prove  that  the  consideration  is  less  valuable  than  it  was  supposed  or  estimated 
to  be  when  the  contract  was  made.  A  note  is  given,  the  consideration  of  which 
is  one  thousand  barrels  of  flour  at  a  stipulated  price  per  barrel.  No  part  of  the 
flour  is  delivered.-  Here  would  be  an  entire  failure  of  consideration.  If  but  five 
hundred  barrels  are  delivered,  there  is  a  partial  failure  of  consideration  to  that 
extent ;  but  the  maker  of  the  note  cannot  rely  upon  the  defence  that  there  was 
a  partial  failure  of  consideration,  and  sustain  the  same  by  proof  that  the  flour 
was  of  less  value  than  the  contract  price.     Baker  v.  Thompson,  16  Ohio,  504. 

■■'  Vesey  v.  Elwood,  3  Dr.  &  W.,  74,  per  Lord  St.  Leonards  ;  Anson  v.  Tow- 
good,  I  J.  &  W^.,  637,  per  Lord  Eldon.  But  see  Minor,  ex  parte,  11  Ves.,  559; 
Twigg  V.  Fifield,  13  lb.,  517.  The  latter  view  was  supported  by  Lord  Lang- 
dale,  who  is  reported  to  have  said  :  "  By  the  established  rule  of  the  court  the 


256  INADEQUACY,    ETC.,    OF    CONSIDERATION.  §    1 92. 

§  192.  Injury  from  inability  of  party  to  fnlfil  at  time 
agreed. — The  question  on  whom  a  benefit  or  loss  resulting 
after  a  private  contract  has  been  signed  will  fall,  and  whether 
the  court  will  enforce  specific  performance  without  regard 
to  such  benefit  or  loss,  or  whether  it  will  discharge  the  con- 
tract, may  depend  upon  the  title.'  The  contract  is  binding 
from  the  date  of  the  signature  if  there  be  a  good  title, 
though  that  be  not  shown  until  afterward.  "  It  is  the  es- 
tablished doctrine  of  equity  that  if  a  contract  to  purchase 
is  to  be  completed  at  a  given  period,  and  the  title  is  finally 
made  out,  the  parties  continuing  in  treaty,  and  the  pur- 
chaser not  by  any  acts  released  from  his  bargain,  the  estate 
is  considered  as  belonging  to  the  purchaser  from  the  date 
of  the  contract,  and  the  money  from  that  time  as  belong- 


purchaser  is  to  be  considered  the  owner  of  the  estate  from  the  date  of  the 
order  confirming  the  report."  Robertson  v.  Skelton,  12  Beav.,  260,  265.  It 
seems,  however,  that  in  the  case  before  Lord  Langdale  the  question  arose  after 
the  confirmation,  which  deprives  it  of  the  weight  it  would  have  had  if  the  cir- 
cumstances had  been  after  the  sale,  but  before  the  confirmation.  Fry  on  Specif. 
Perform.,  264.  But  see  Busey  v.  Hardin,  2  B.  Mon.,  407  ;  Owen  v.  Owen,  5 
Humph.,  352.  In  Robb  v.  Mann,  i  Pa.  St.,  300,  in  which  the  subject  was  dis- 
cussed, Rogers,  J.,  in  delivering  the  opinion  of  the  court,  said  :  "  The  first 
question  which  solves  the  whole  difficulty  is,  to  whom  the  property  belonged  in 
the  intermediate  time  between  the  sale  and  its  confirmation  by  the  orphan's 
court ;  or,  in  other  words,  was  it  the  property  of  the  administrator  or  heirs,  or 
the  property  of  the  purchaser.  For  the  loss,  of  whatever  kind,  and  by  whom 
caused,  must  be  borne  by  the  owner.  Had  there  been  a  private  sale,  it  would 
hardly  be  considered  an  open  question  ;  for  if  there  be  any  point  settled,  it  is 
that,  when  a  contract  is  made  for  the  sale  of  land,  equity  considers  the  vendee  as 
the  purchaser  of  the  estate  sold,  and  the  purchaser  as  a  trustee  to  the  vendor 
for  the  purchase  money.  So  much  is  the  vendee  considered,  in  contemplation 
of  equity,  as  actually  seized  of  the  estate  that  he  must  bear  any  loss  which  may 
happen  to  the  estate  between  the  agreement  and  the  conveyance,  and  he  will  be 
entitled  to  any  benefit  which  may  accrue  to  it  in  the  interval.  And  the  reason 
assigned  is  that,  by  the  contract,  he  is  the  owner  of  the  premises  to  every  intent 
and  purpose  in  equity.  This  principle,  which  is  indisputable,  would  seem  de- 
cisive of  the  question,  unless  a  distinction  can  be  taken  between  a  private  and  a 
judicial  sale.  But  no  such  distinction  has  been  recognized  ;  rather  the  reverse 
has  been  ruled."  See  Stoever  v.  Rice,  3  Whart.,  25  ;  Bashore  v.  Whisler,  3 
Watts,  494;  Morrison  v.  Wurtz,  7  lb.,  437  ;  Bellas  v.  M'CartRy,  10  lb.,  22.  As 
to  mode  of  sale  under  order  of  court  in  Maryland,  see  Andrews  v.  Scotton,  2 
Bland's  Ch.,  629. 

1  Some  of  the  earlier  Enghsh  cases  held  that  to  bind  the  purchaser  the  title 
must  have  been  actually  accepted  by  him.  But  if  the  vendor  is  able  to  give  a 
good  title,  its  acceptance  or  non-acceptance  by  the  vendee  at  the  date  of  the 
contract  would  seem  unimportant.  See  Wyvill  v.  Bishop  of  Exeter,  i  Price, 
292,  295,  n. ;  Paine  v.  Meller,  6  Ves.,  349. 


§   193-  IN    CASE    OF    CONDITIONAL    AGREEMENT.  257 

ing  to  the  vendor.'"  But  if  the  making  out  of  the  title  is 
unreasonably  delayed  by  the  vendor,  though  without  laches 
on  his  part,  and  the  purchaser  is  likely  to  sustain  serious 
loss  thereby,  specific  performance  will  not  be  decreed 
against  him.  Accordingly,  where  the  vendor  was  delayed 
a  long  time  in  making  title  to  one-sixth  of  the  property  in 
consequence  of  being  unable  to  find  the  deed,  which  was 
recorded  in  the  clerk's  office,  but  omitted  from  the  index  of 
deeds,  and  meanwhile  the  property  had  greatly  depreciated 
in  value,  it  was  held  that  the  purchaser  would  not  be  com- 
pelled to  take  it.°  And  where  the  vendor  was  not  in  a  con- 
dition to  convey  a  clear,  unincumbered  title  when  the  house 
on  the  property  was  consumed  by  fire,  it  was  held  that  the 
purchaser  was  not  bound  to  complete.'  On  the  other 
hand,  if  unexcused  delay  in  payment  at  the  time  stipulated 
in  the  contract  has  produced  a  material  change  of  circum- 
stances, making  the  contract  more  onerous  on  the  vendor, 
equity  will  not  decree  its  performance  against  him.' 

§  193.  In  case  of  conditional  agreement. — When  the  con- 
tract is  conditional  the  property  does  not  pass  from  the 
vendor  to  the  purchaser  upon  the  conclusion  of  the  con- 
tract, but  only  when  the  contract  becomes  absolute  by  the 
performance  of  the  condition ; '  and  until  then  the  property 

'  Harford  v.  Furrier,  i  Mad.,  538,  per  Sir  Thomas  Plumer.  See  Rawlins  v. 
Burgis,  2  Ves.  &  Bea.,  387  ;  Revell  v.  Hussey,  2  Ball  &  Beatt.,  287  ;  Brewer  v. 
Herbert,  30  Md.,  302. 

*  Griffin  v.  Cunningham,  19  Gratt.,  571.        ^  Christian  v.  Cabell,  22  Gratt.,  82. 
"  Andrews  v.  Bell,  56  Pa.  St.,  343  ;  Booten  v.  Scheffer,  21  Gratt.,  474.  Where 

the  value  of  the  property  has  materially  changed,  or  great  financial  events  have 
essentially  altered  the  relative  value  of  money  and  land,  a  party  will  not  be  per- 
mitted to  lie  by  until  the  change  sets  in  his  favor  and  then  ask  for  specific  per- 
formance.    Merritt  v.  Brown,  19  N.  J.  Eq.  (4  C.  E.  Green),  286. 

*  Where  a  son  received  a  conveyance  from  his  father  in  consideration  of  sup- 
port, the  court  decreed  a  re-conveyance  without  requiring  money  paid  by  the 
son  for  taxes  to  be  refunded.  Penfield  v.  Penfield,  41  Conn.,  474.  A.  granted 
to  B.  the  right  to  use  certain  water  power  and  to  dig  a  race  on  A.'s  land,  in 
consideration  of  erecting  a  mill  at  a  specified  place.  B.  having  diverted  the 
w-ater  from  A.'s  land,  and  erected  his  mill  at  a  different  place  from  the  one  agreed, 
it  was  held  that  A.  was  entitled  to  a  re-conveyance,  and  that  B.  should  be  en- 
joined from  setting  up  his  deed  in  defence  in  any  action  for  a  previous  diversion 
of  the  water.  Jacox  v.  Clarke,  Walk.  (Mich.)  Ch.,  508.  Where  the  owner  of  a 
judgment  of  two  hundred  dollars  agreed  to  release  it  at  a  future  day  on  pay- 
ment by  the  judgment  debtor  of  one  hundred  dollars  and  the  surrender  by  him 


258  INADEQUACY,    ETC.,    OF    CONSIDERATION.  §    1 94. 

is  at  the  risk  of  the  vendor.  A  contract  for  a  lease  for 
five  years  from  April  ist,  1840,  provided  that  the  lessor 
should  erect  by  that  time  a  new  warehouse  on  the  premises 
and  repair  the  old  warehouse,  and  that  the  rent  should  be 
regulated  by  the  amount  expended  on  the  buildings.  The 
new  warehouse  was  not  completed,  nor  the  old  one  re- 
paired by  the  time  agreed,  but  no  objection  was  made  by 
the  intended  lessee,  who  remained  in  possession  of  part  of 
the  premises  under  a  former  agreement.  Shortly  after- 
ward the  whole  premises  were  destroyed  by  fire.  The 
lessor  having  brought  a  suit  to  compel  the  lessee  to  rebuild 
and  to  accept  a  lease,  it  was  held  that  if  time  were  of  the 
essence  of  the  contract,  it  had  been  waived  by  the  defend- 
ant, but  that  this  did  not  release  the  obligation  of  the  lessor 
to  rebuild,  and  that  the  defendant  was  not  bound  to  accept 
a  lease  until  that  was  done  ;  and,  furthermore,  treating  the 
contract  to  take  a  lease  as  a  contract  to  purchase,  the  ware- 
house was  not  purchased  by  the  defendant  until  it  was  com- 
pleted by  the  plaintiff,  and  until  that  was  accomplished  it 
was  not  the  property  of  the  lessee  nor  at  his  risk.' 

§  194.  Losses  to  be  boT-7te  by  vendee. — Since,  after  the  con- 
tract has  been  fully  concluded,  the  property  sold  is  at  the 
risk  of  the  purchaser,  it  follows  that  subsequent  losses  or 
gains  cannot  determine  the  contract.''  Accordingly,  where, 
after  the  making  of  the  contract,  houses  on  the  property 
sold  are  destroyed  by  fire,  the  loss  must  be  borne  by  the 
purchaser,^  So,  a  contract  to  sell  an  annuity  will  not  be 
discharged  by  the  death  of  the  annuitant,  although  it  occurs 
previous  to  payment."     And  where  a  contract  was  entered 

of  all  claim  to  certain  land,  and  the  consideration  failed  except  the  payment  of 
one  hundred  dollars,  the  court  refused  to  decree  a  specific  performance,  but  di- 
rected that  the  judgment  should  be  credited  with  such  payment.  Davis  v.  Bow- 
ker,  I  Nevada,  487. 

'  Counter  v.  Macpherson,  5  Moo.  P.  C.  C,  83. 

'•^  Revell  V.  Hussey,  2  Ball  &  B.,  287.  This  obvious  principle  does  not  seem 
always  to  have  been  adhered  to.  See  Davy  v.  Barber,  2  Atk.,  489 ;  Stent  v. 
Bailis,  2  P.  Wms.,  217  ;  Pope  v.  Roots,  i  Bro.  P.  C,  370. 

^  Paine  v.  Meller,  6  Ves.,  349. 

*  Mortimer  v.  Capper,  i  Bro.  C.  C,  156 ;  Jackson  v.  Lever,  3  lb.,  605. 


§    195-  TERMINATION    OF    INTEREST.  259 

into  between  two  persons  and  a  merchant  that  the  former 
should  be  taken  by  the  latter  into  partnership  for  a  period 
of  eighteen  years  in  consideration  of  a  sum  to  be  paid  by 
instalments,  and  before  the  instalments  were  all  paid  the 
merchant  became  insolvent,  it  was  held  that  the  assignees 
were  entitled  to  the  remaining  instalments.' 

§  195.  Terniinatio7t  of  interest. — In  England  the  ques- 
tion has  been  considerably  discussed,  and  somewhat  differ- 
ent  views  entertained,  by  the  courts,  as  to  what  ought  to  be 
done  when  a  contract  which  was  capable  of  being  per- 
formed at  the  time  of  bringing  the  suit  has  become,  by 
lapse  of  time  between  that  and  the  hearing,  incapable  of 
performance  so  as  to  confer  future  benefits."  The  follow- 
ing rule  seems  to  have  been  adopted  :  Where  a  suit  for 
specific  performance  is  brought  after  the  interest  has  ex- 
pired, or  so  near  to  its  expiration  as  that  by  the  ordinary 
course  of  the  court  a  decree  cannot  be  rendered  until  after 
it  shall  have  determined,  the  bill  will  be  dismissed.  But 
when  the  plaintiff  at  the  time  of  bringing  his  suit  has  a 
right  to  specific  performance,  and  the  interest  expires  be- 
fore the  hearing  by  reason  of  delay  wholly  due  to  the 
court,  he  may  have  an  account  or  other  equitable  relief  to 
which  he  may  be  entitled,  and  perhaps  "  the  execution  of 
a  legal  instrument,  where  that  would  confer  on  him  im- 
portant legal  rights  to  which  he  was  entitled  at  the  filing 
of  the  bill/" 

1  Akhurst  v.  Jackson,  1  Swanst.,  85  ;  and  see  Coles  v.  Trecothick,  9  Ves., 
246.  Where  money  was  left  to  be  invested  in  land  for  the  use  of  A.  in  tail,  re- 
mainder to  B.  in  fee,  and  A.  and  B.  agreed  to  divide  the  money,  and  before  the 
agreement  could  be  carried  out  A.  died  without  issue,  the  agreement  was  never- 
theless specifically  enforced.     Carter  v.  Carter,  Forrest,  271. 

"  See  Nesbitt  v.  Meyer,  i  Swanst.,  223  ;  Walters  v.  Northern  Coal  Mining  Co., 
5  De  G.  M.  &  G.,  67,9  ;  Hoyle  v.  Livesey,  i  Men,  381  ;  Wilson  v.  Torkington,  2 
Y.  &  C.  Ex.,  726,  728  ;  Strickland  v.  Turner,  7  Ex.,  208. 

^  Fry  on  Specif.  Perform.,  269. 


CHAPTER  VI. 

CONTRACT    NOT    MUTUAL, 

196.  Rule  as  to  mutuality. 

197.  Examples  illustrating  the  rule. 

198.  ]n  cases  where  the  court  would  have  no  jurisdiction  to  enforce  the  con- 

tract against  the  plaintiff. 

199.  Exceptions  to  rule  as  to  time  of  mutuality. 

200.  When  optional  agreements  enforced. 

201.  Where  only  one  party  signs  the  contract. 

202.  Objection  that  contract  is  not  mutual  how  waived. 

203.  Where  the  vendor  agrees  to  convey  more  than  he  is  able. 

204.  When  interest  of  vendor  cannot  be  ascertained. 

205.  Where  partial  interest  of  vendor  if  conveyed  will  impair  the  rights  of  third 

persons. 

206.  Inability  of  vendor  to  convey  more  than  a  small  portion  of  premises. 

§  196,  Both  parties  must  be  bound  by  contract. — To  en- 
title a  party  to  specific  performance,  there  must  not  only  be 
a  valid  and  binding  agreement ;  but,  as  a  rule,  the  contract, 
at  the  time  it  was  entered  into,  must  have  been  capable  of 
being  enforced  by  either  of  the  parties  against  the  other.' 

'  Boucher  v.  Vanbuskirk,  2  A.  K.  Marsh,  345  ;  Hutchison  v.  McNutt,  i  Ohio, 
14 ;  Ohio  v.  Baum,  6  lb.,  383 ;  Cabeen  v.  Gordon,  i  Hill,  S.  C.  Ch.,  51  ;  McMur- 
trie  v.  Bennette,  Harr.  Ch.,  124;  Havvley  v.  Sheldon,  lb.,  420  ;  Benedict  v.  Lynch, 
I  Johns.  Ch.,  370;  German  v.  Machin,  6  Paige  Ch.,  288  ;  Beard  v.  Linthicum,  i 
Md.  Ch.,  345;  Bodine  v.  Glading,  21  Pa.  St.,  50;  Jones  v.  Noble,  3  Bush.,  Ky., 
694  ;  Rider  v.  Gray,  10  Md.,  282  ;  Reese  v.  Reese,  41  lb.,  554;  O'Brien  v.  Pentz, 
48  lb.,  562 ;  Ewins  v.  Gordon,  49  N.  H.,  444  ;  Richmond  v.  Dubuque,  etc.,  R.R. 
Co.,  33  Iowa,  422  ;  Tarr  v.  Srott,  4  Brews.  Pa.,  49.  "  It  has  been  held  that  the 
perfoiTnance  of  a  contract,  on  one  side,  entitles  the  party  performing  to  equitable 
assistance  against  the  other,  though,  upon  the  application  of  the  latter,  the  court 
could  not  have  compelled  performance  in  his  favor.  A  contract  with  an  infant 
has  been  held  to  be  enforceable  by  him  after  he  becomes  of  age,  notwithstand- 
ing the  want  of  mutuality  in  the  first  instance,  the  same  effect  being  given  to  the 
contract  in  equity  as  at  law.  A  lessee  may  enforce  a  contract  to  renew  a  lease 
which  could  not  be  enforced  against  him.  But  this  results  from  the  prior  lease, 
and  the  nature  of  the  contract  itself,  and  can  hardly  be  regarded  as  an  excep- 
tion to  the  rule.  A  contract  between  a  trustee  and  his  cestui  que  trust  may  be 
enforced  by  the  latter  ;  but  not  by  the  former.  And,  under  certain  circumstances, 
a  voluntary  settlement  may  be  enforced  by  the  beneficiary,  who  could  not,  of 
course,  be  compelled  to  accept  it.  In  these  cases,  however,  there  are  consider- 
ations which  override  the  principle  of  mutuality;  and  we  are  not  aware  of  any 
case  involving  a  reciprocity  of  obligation,  in  which  a  contract  has  been  enforced 
in  favor  of  a  party  who  had  not  actually  performed  it,  or  could  be  compelled  to 
do  so.  It  is  safe  to  say  that  no  such  case  exists,  and  that  equity  will  not  inter- 
fere in  favor  of  one  of  the  parties,  where  it  is  incapable  of  doing  justice  to  the 
other,  by  enforcing  the  entire  contract  according  to  its  terms."  Cope,  J.,  in 
Cooper  V.  Pena,  21  Cal.,  403. 


§  196.   BOTH  PARTIES  MUST  BE  BOUND  BY  CONTRACT.   26 1 

In  Other  words,  there  must  be  mutuality  both  as  to  the  ob- 
ligation and  the  remedy.  It  follows,  that  a  party  not  buund 
by  the  agreement  itself,  has  no  right  to  call  upon  the  court 
to  enforce  performance  against  the  other  contracting  party 
by  expressing  a  willingness  in  his  bill  to  perform  his  part 
of  the  agreement.'  As  was  said  by  Lord  Redesdale,"  "This 
would  not  be  equity,  that  a  party  not  bound  by  the  agree- 
ment itself,  should  be  permitted,  at  his  option,  and  when  he 
find  it  to  his  advantage  to  do  so,  to  compel  the  other  party 
to  perform,  when,  if  the  advantage  were  the  other  way,  he 
could  not  himself  be  coerced  to  performance  on  his  part."' 
It  is  immaterial  what  constitutes  the  want  of  mutuality, 
whether  resulting  from  personal  incapacity,  from  the  nature 
of  the  contract,  or  from  any  other  cause.  Whenever  the 
absence  of  the  essential  element  is  ascertained  to  exist  on 
the  part  of  one  of  the  contractors,  and  for  that  reason  is  in- 
capable of  being  enforced  against  him,  he  will  be  equally 
incapable  of  enforcing  the  contract  against  the  other  party. 
The  obligation  is  mutual  where  both  parties  are  required  by 
the  agreement  to  do  something ;  the  promise  of  the  one 
being  a  consideration  for  that  of  the  other.     It  makes  no 

'  Duvall  V.  Myers,  2  Md.  Ch.,  401  ;  Meason  v.  Kaine,  63  Pa.  St.,  335.  Where 
a  person  entered  into  a  contract  for  the  sale  of  property  belonging  to  his  wife, 
it  was  held  that  he  could  not  compel  fulfilment  on  the  part  of  the  purchaser  by 
afterward  tendering  a  deed  executed  by  both  husband  and  wife.  Luse  v.  Dietz, 
46  Iowa,  205. 

"  I  Sch.  &  Lef.,  18. 

^  A  similar  thought  was  expressed  in  Tucker  v.  Clarke,  2  Sandf.  Ch.,  96,  in 
which  the  court  said  :  "The  executed  contract  was,  that  the  complainants  were 
seized  of  the  lots,  and  that  if  they  were  not,  they  should  repay  the  consideration 
money.  This  is  sought  to  be  reconsidered,  and  turned  into  a  contract  by  which 
if  it  should  turn  out  that  they  were  not  seized,  they  might  either  repay  the  con- 
sideration or  procure  a  good  title  to  be  conveyed.  It  would  have  been  a  little 
more  plausible  if  there  were  a  semblance  of  mutuality  about  it,  so  that  the  de- 
fendant might  have  coerced  them  to  procure  a  good  title  on  discovering  the  de- 
fect. But  there  is  no  pretence  that  the  defendant  had  any  such  equity.  The 
complainants'  ground  amounts  to  this :  if  the  lots  had  become  worth  two  or 
three  times  the  price  which  the  defendant  paid  for  them,  then  they  could  set  up 
the  outstanding  title,  deprive  the  defendant  of  his  speculation,  and  throw  him 
upon  the  covenants  of  his  deed,  which  would  restore  to  him  the  consideration 
paid.  If,  on  the  other  hand,  the  lots  should  depreciate  very  much,  the  com- 
plainants would  procure  the  outstanding  title  for  him,  and  retain  the  price  which 
he  paid.  There  is  no  equity  or  fairness  in  this,  and  the  court  cannot  grant  the 
relief  prayed  by  the  bill  without  first  making  such  a  contract  for  the  parties." 
See  Maynard  v.  Brown,  41  Mich,,  298. 


262  CONTRACT    NOT    MUTUAL.  §    I97. 

difference  in  this  respect  whether  the  obligation  of  the  one 
is  secured  by  bond,  and  that  of  the  other  not  thus  secured, 
nor,  that  when  the  cause  comes  on  for  hearing,  the  plain- 
tiff's part  of  the  agreement  has  not  actually  been  performed, 
if  its  fulfilment  is  tendered,  and  can  be  secured  by  the  same 
decree  which  compels  specific  performance  by  the  defend- 
ant, especially  if  he  has  sustained  no  damage,  or  none  which 
cannot  be  compensated  by  the  decree.' 

§  197.  Illust7'-ations  of  7'ulc. — In  accordance  with  the 
rule  stated  in  the  preceding  section,  an  infant  cannot  enforce 
an  agreement  against  an  adult,  because  a  suit  for  specific 
performance  cannot  be  maintained  by  the  latter  against  the 
infant.'  So,  where  land  for  which  a  contract  of  sale  was 
given,  was  owned  by  two  persons,  and  the  purchaser  sup- 
posed that  he  was  dealing  with  only  one  of  them,  and  that 
he  was  the  sole  owner,  and  there  was  nothing  on  the  face 
of  the  agreement  which  could  give  the  purchaser  a  claim 
against  the  owner  not  named  for  his  interest  in  the  contract, 
it  was  held  that  as  there  was  a  want  of  mutuality,  specific 
performance  could  not  be  decreed.^  A.,  without  any  authority 
from  B.,  signed  an  agreement  for  the  sale  of  land  as  the 
aofcnt  of  B.  and  C.  Held  that  C.  could  not  alone  be  com- 
pelled  to  perform,  since  the  vendee,  at  the  time  of  entering 
into  the  agreement,  did  not  assent  to  a  contract  binding  on 
one  vendor  only,  and  there  was  therefore  no  mutuality, 
whether  B.  had  any  interest  in  the  land  or  not.'  An  agree- 
ment purporting  to  be  executed  by  the  heirs  of  A.,  a  very 
aged  man,  provided  for  making  an  inventory  and  division  of 
the  property  of  A.,  real  and  personal,  the  division  to  be  made 
"  as  we,  the  undersigned,  may  hereafter  agree  on."    The  per- 

*  Ewins  V.  Gordon,  supra. 

■••'  Flight  V.  Bolland,  4  Russ.,  298  ;  ante,  §  123.  Where  an  adult  made  an  agree- 
nnent  with  others  for  the  distribution  of  property,  founded  on  a  sufficient  con- 
sideration, and  free  from  fraud  or  mistake,  it  was  held  that  specific  performance 
would  be  decreed  whether  the  other  parties  to  the  contract  were  adults  or  minors, 
provided  there  was  mutuality  in  the  contract,  and  in  the  remedy.  Smith  v. 
Smith,  63  Ga.,  184. 

^  Bronson  v.  Cahill,  4  McLean,  19.  ■*  Snyder  v.  Neefus,  53  Barb.,  63. 


§    197-  ILLUSTRATIONS    OF    RULE.  263 

sons  who  signed  the  agreement  were  the  sons  and  some  of 
the  sons-in-law  of  A.,  the  daughters  of  the  latter  not  being 
■parties,  nor  A.  Upon  the  father  afterward  surrendering  all 
the  personal  property  to  the  sons-in-law,  and  conveying  the 
land  to  the  son,  the  sons-in-law  filed  a  bill  against  the  son 
for  a  specific  performance  of  the  agreement.  Held,  that  as 
the  daughters  who  were  not  parties  to  the  agreement,  could 
not  be  compelled  to  make  an  equal  division  of  the  land, 
there  was  no  mutuality  between  the  plaintiffs  and  defend- 
ant, and  the  former  must  therefore  be  left  to  whatever 
remedy  the  law  would  give  them.*  A.  and  B.  were  rival 
bidders  for  a  contract  with  the  government.  The  propo- 
sals of  A.  were  ultimately  accepted ;  but  before  such  accept- 
ance, he  entered  into  an  agreement  with  B.,  signed  by  him- 
self alone,  that  upon  B.  giving  the  required  security,  and 
paying  a  certain  sum,  he  would  sell  the  contract  to  B.  Held, 
that  as  B.  nowhere  agreed  that  he  would  buy  the  contract, 
it  could  not  be  enforced  for  want  of  mutuality.*  So,  a  grant 
from  A.  to  B.  of  the  privilege  of  digging  ore  on  A.'s  land 
attw^enty-five  cents  per  ton,  is  not  mutually  binding,  there 
being  no  obligation  on  B.  to  dig  ore  ;  and  it  will  not  for 
that  reason  be  specifically  enforced.'  Where,  in  a  suit  for 
the  specific  performance  of  a  contract,  it  appeared  that  the 
object  of  the  defendant,  and  which  he  believed  was  secured 
by  the  contract,  was  to  have  the  minerals  on  his  farm 
worked,  as  well  as  explored,  wdiich  he  agreed  might  be 
done  by  the  plaintiff,  but  the  only  engagement  on  the  part 
of  the  latter  was  to  make  explorations,  it  was  held  that  as 
there  was  no  reciprocity  of  obligation,  the  bill  must  be  dis- 


'  Brewer  v.  Church,  4  Jones  Eq.,  418.  "  If  the  agreement  had  been  executed 
by  all  of  the  children  of  A.,  and  provided  for  an  equal  division  of  his  property 
among  them  with  his  consent,  it  would  have  been  a  question  whether  equity 
would  not  have  sustained  it  against  any  one  of  them  who  should  have  subse- 
quently obtained  a  conveyance  from  the  father  inconsistent  with  it  ;  it  having 
been  held  that  if  two  expectant  devisees  or  legatees  agree  to  divide  equally  what- 
ever devises  or  legacies  they  may  take  under  the  will  of  a  particular  testator,  the 
agreement  of  one  shall  be  regarded  as  a  valuable  consideration  for  that  of  the 
other,  and  the  contract  will  be  enforced  in  equity."     lb.  per  Battle,  J. 

-  Woodward  v.  Harris,  2  Barb.,  439.  ^  Yerger  v.  Green,  4  Gill,  672. 


264  CONTRACT    NOT    MUTUAL.  §    1 98. 

missed.'  A  contract  which  provides  that  one  of  the  parties 
may  abandon  the  contract  on  giving  a  year's  notice,  cannot 
be  enforced  for  want  of  mutuality." 

§  198.  Court  must  be  able  to  enforce  contract  against 
plaintiff. — Specific  performance  will  not  in  general  be 
decreed  in  favor  of  a  person  where  the  court  would  have  no 
jurisdiction  to  enforce  the  contract  against  him,  if  it  should 
be  called  upon  to  do  so.'  Where  a  contract  was  entered 
into  for  the  lease  of  a  railroad,  the  lessee  to  permit  the  les- 
sor to  run  carriages  over  the  road,  provide  engines  for  them, 
and  keep  the  road  in  repair  during  the  term,  the  court  re- 
fused to  compel  the  lessor  to  execute  the  lease,  because  it 
could  not  enforce  specific  performance  on  the  part  of  the 
lessee."  And  where  the  plaintiffs  had  agreed,  for  a  money 
consideration,  to  perform  services  in  working  a  railway 
w^hich  were  of  such  a  nature  that  the  court  could  not  have 
enforced  them  against  the  plaintiffs,  specific  performance 
was  refused.'  So,  where  the  object  of  the  suit  was,  in  effect, 
to  compel  specific  performance  of  the  grant  of  an  office,  it 

1  Tyson  v.  Watts,  i  Md.  Ch.,  13. 

'^  Marble  Co.  v.  Ripley,  10  Wall,  339.  A  contract  for  the  sale  of  real  estate  is 
not  only  bad  for  uncertainty,  but  for  the  want  of  mutuality,  which  provides  that 
the  purchaser  shall  erect  on  the  land  a  certain  building  without  other  description. 
Mastin  v.  Halley,  61  Mo.,  196. 

'  Gervaise  v.  Edwards,  2  Dr.  &  W.,  80  ;  Hills  v.  Croll,  2  Phil.,  60.  "  The  court 
does  not  give  relief  to  a  plaintiff,  although  he  be  otherwise  entitled  to  it,  unless 
he  will,  on  his  part,  do  all  that  the  defendant  may  be  entitled  to  ask  from  him  ; 
and  if  that  which  the  defendant  is  entitled  to,  be  something  which  the  court  can- 
not give  him,  it  has  been  the  generally  understood  rule  that  that  is  a  case  in 
which  the  court  will  not  interfere."  Wigram,  V.  C,  in  Waring  v.  Manchester,  etc., 
R.R.,  7  Hare,  492.  If  what  is  to  be  done  by  the  plaintiff  is  intended  to  rest  in 
contract  only,  specific  performance  may  be  decreed,  the  court  having  power  to 
compel  the  plamtiff  to  execute  a  deed  with  the  stipulated  covenants;  and  it  will 
be  no  objection  that  the  covenants  are  not  of  a  nature  to  admit  of  a  decree  for 
specific  performance.  Wilson  v.  West  Hartlepool  R.R.,  2  De  G.  J.  &  S.,  475  ; 
Onions  v.  Cohen,  2  H.  &  M.,  354.  But  where  the  defendant  has  stipulated  for 
the  actual  performance  of  the  acts,  the  court  will  not  compel  him  to  perform  the 
contract  specifically  on  his  part,  and  to  be  satisfied  with  a  deed  from  the  plain- 
tiff.    Stocker  v.  Wedderburn,  3  K.  &  J.,  393. 

♦  Blackett  v.  Bates,  L.  R.  i,  Ch.  125. 

*  Johnson  v.  Shrewsbury  &  Birmingham  R.R.  Co.,  3  De  G.  M.  &  G.,  914; 
Stocker  v.  Wedderburn,  3  K.  &  J.,  393  ;  Ord  v.  Johnson,  i  Jur.  N.  S.,  1063  ;  Hill 
V.  Gomme,  i  Beav.,  540;  Bromley  v.  Jefferies,  2  Vern.,  415.  But  see  Hope  v. 
Hope,  22  Beav.,  364 ;  S.  C,  26  L.'j.  Ch.,  417  ;  Vansittart  v.  Vansitlart,  4  K.  & 
J.,  62. 


§    199-  WHEN    NOT    A    DEFENCE.  265 

was  held  that  as  the  duties  and  services  incident  to  the  office 
were  personal  and  confidential  in  their  character,  and  spe- 
cific performance  could  not  have  been  decreed  against  the 
plaintiff  at  the  suit  of  the  defendant,  the  plaintiff  could  not 
sue  the  defendant,  though  there  were  no  personal  duties  to 
be  performed  by  the  latter.' 

§  199.  When  not  a  defence. — It  follows  from  the  rule 
that  the  mutuality  of  an  agreement  is  to  be  judged  of  at 
the  time  it  is  made,  that  it  will  not  constitute  an  objection 
to  specific  performance,  that  the  defendant,  by  his  laches  or 
other  acts  or  omissions,  has  lost  his  right  to  enforce  the 
contract  against  the  plaintiff ;  a  party  not  being  permitted 
to  take  advantage  of  his  own  neglect  : ""  as  w^here  a  rail- 
road company,  after  agreeing  to  purchase  land,  allows  the 
time,  during  which  by  their  statutory  powers  they  can  pur- 
chase the  land,  to  expire.'  The  rule  as  to  time,  is  to  be 
taken  with  this  qualification,  that  notwithstanding  the  con- 
tract, when  it  is  entered  into,  be  incapable  of  specific  per- 
formance by  one  of  the  parties,  or  of  being  enforced 
against  him,  yet  if  the  obligation  to  perform  be  mutual, 
and  the  obstacle  to  performance  be  subsequently  overcome, 
a  decree  may  then  be  rendered.  If  the  plaintiff  has  per- 
formed his  part  of  the  agreement,  specific  performance 
may  be  decreed,  although  the  contract,  so  far  as  concerned 
performance  by  the  plaintiff,  was  originally  beyond  the 
jurisdiction  of  the  court.'     Accordingly,  in  the  case  of  a 

1  Pickering  v.  Bishop  of  Ely,  2  Y.  &  C.  C.  C,  249. 

''Southeastern  R.R.  Co.  v.  Knott,  10  Hare,  122;  ante,  §  174. 

'  Hawkes  v.  Eastern  Counties  R.R.  Co.,  i  De  G.  M.  &  G.,  737,  755  ;  S.  C,  5 
House  of  Lds.,  331,  365.  Contra,  Stuart  v.  London  &  Northwestern  R.R.  Co., 
lb.,  721.  It  will  be  no  objection  to  decreeing  a  specific  performance  in  favor  of 
the  plaintiff,  that  by  a  subsequent  contingent  event,  it  could  not  be  enforced 
against  him.  Thus,  if  by  the  contingent  event  of  the  death  of  the  vendor  be- 
fore making  the  conveyance,  specific  performance  could  not  be  enforced  against 
the  vendee  because  the  latter  could  not  get  the  title  he  contracted  for,  it  would 
not  follow  that  the  vendee  could  not  enforce  specific  performance  against  the 
heirs  of  the  vendor.  For  if  A.  has  contracted  to  sell  B.  land,  and  to  make  him 
a  perfect  title,  he  must  be  able  to  show  such  title,  or  he  cannot  enforce  specific 
performance  ;  while,  in  the  same  case,  B.  may  enforce  a  specific  performance 
against  A.  if  he  is  willing  to  take  A.'s  defective  title.  Moore  v.  Fitz  Randolph, 
6  Leigh,  175. 

■*  Dietrichsen  v.  Cabburn,  2  Phill,,  52.     In  a  suit  by  a  married  woman,  if  she 


266  CONTRACT    NOT    MUTUAL.  §  1 99. 

contnict  for  the  buildino;  of  houses  on  different  plots  of 
ground,  and  for  granting  separate  leases  of  the  plots  as 
soon  as  the  houses  were  finished,  it  was  held  that  although 
the  court  could  not  specifically  enforce  the  contract  for 
building,  yet,  when  the  houses  were  finished,  specific  per- 
formance would  be  decreed  for  the  leases,  and  that  the 
building  of  all  of  the  houses  was  not  an  essential  condi- 
tion to  specific  performance  as  to  the  lease  of  each  plot.' 
The  principle  under  consideration,  has  been  applied  to  con- 
tracts for  personal  services.  Thus,  where  a  county,  through 
its  b^ard  of  supervisors,  entered  into  a  contract  with  an 
individual  to  prosecute  its  claim  to  certain  lands,  he  to  re- 
ceive as  compensation,  in  case  he  succeeded,  one-half  of 
the  lands,  or  the  indemnity  granted  in  lieu  thereof,  and, 
after  more  than  five  years  of  services,  he  recovered  the 
claim  in  full,  it  was  held  that  he  was  entitled  to  a  decree 
for  specific  performance."  Where,  however,  the  considera- 
tion for  a  conveyance  of  land  to  the  plaintiff,  was  personal 
services   to    be    rendered    by   him,  part   of  whicli   he    had 


has  fully  performed  on  her  part,  an  objection  by  the  other  party  that  she  could 
not  have  been  compelled  to  perform,  comes  too  late.  Seagerv.  Barnes,  4  Minn., 
141.  See  Fenelly  v.  Anderson,  i  Ir.  Ch.,  417,  where  it  was  held  that  a  con- 
tract by  a  purchaser  with  a  husband  and  wife,  was  not  bad  for  want  of  mutu- 
ality, and  might  be  enforced  by  them.  In  a  suit  to  enforce  the  specific  performance 
of  a  contract  to  convey  certain  land,  it  was  urged  that  as  the  vendee  was  a  mar- 
ried ^voman,  she  was  not  bound  by  the  contract,  and  consequently  there  was  no 
mutuality.  But  as  it  appeared  that  she  had  taken  possession,  and  made  im- 
provements on  the  land,  it  was  held  that  as  the  contract  might  in  equity  be  en- 
forced against  her,  and  the  unpaid  purchase  money  be  declared  a  charge  upon 
her  separate  estate,  there  was  not  such  a  want  of  mutuality  as  to  defeat  her 
action.  Chamberlin  v.  Robertson,  31  Iowa,  498.  "  The  disability  of  a  married 
woman  whereby  she  is  exempted  from  the  obligation  of  her  contracts,  is  not 
created  by  the  law  for  the  benefit  of  those  who  contract  with  her,  but  for  the 
protection  of  her  and  her  husband.  Those  contracting  with  her  cannot  seek 
benefits  and  immunities  on  account  of  this  disability,  nor  be  relieved  of  their 
obligations,  unless  they  would  be  exposed  to  loss,  or  subjected  to  injustice  by 
reason  of  the  tact  that  the  contract  cannot  be  enforced  against  her.  If  it  ap- 
pears certain  that  a  party  contracting  with  a  married  woman  will  not  thus  suffer 
on  account  of  her  disabilitv,  as  in  the  case  where  she  has  performed  her  obliga- 
tion, or  has  done  that  which  is  the  consideration  for  the  promise  of  the  other 
party,  or  when  the  consideration  is  secure  to  him,  in  such  cases,  her  disability 
cannot  be  set  up  as  a  defence  to  an  action  against  him  upjn  the  contract,"  lb., 
per  Beck,  J.     Contra,  Tarr  v.  Scott,  4  Brews.  Pa.,  49. 

'  Wilkinson  v.  Clements,  L.  R.  8,  Ch.  96. 

'  Allen  V.  Cerro  Gordo,  40  Iowa,  348 ;  S.  C.  34  lb.  54. 


§  200.  WHERE    A    PARTY    HAS    AN    OPTION.  267 

rendered,  it  was  held  that  as  he  could  not  be  compelled  to 
complete  them,  he  was  not  entitled  to  a  decree  for  specific 
performance,  and  that  an  offer  to  perform  them  was  not 
equivalent  to  actual  performance.' 

§  200.  Where  a  party  has  an  option. — An  exception  to 
the  doctrine  of  mutuality  arises  when  but  one  party  to  the 
contract  is  entitled  to  performance  :  as  where  a  landlord  cov- 
enants to  renew  the  lease  upon  the  request  of  the  lessee,""  or 
where  the  agreement  is  in  the  nature  of  an  undertaking.' 
Unilateral  or  optional  contracts  are  not  favored  in  equity, 
and  it  has  been  held  both  in  England  and  this  country  that 
want  of  mutuality  of  obligation  and  remedy  is  a  bar  to 
specific  performance.'  But  it  is  well  settled  that  an  op- 
tional agreement  to  convey,  or  to  renew  a  lease,  without 
any  covenant  or  obligation  to  purchase  or  accept,  and 
without  any  mutuality  of  remedy,  will  be  enforced  in  equity 
if  it  is  made  upon  proper  consideration,  or  forms  part  of  a 
lease  or  other  contract  between  the  parties  that  may  be 
the  true  consideration  for  it ; '  though  such  an  agreement 
can  perhaps  scarcely  be  called  an  exception  ;  for,  being  in 
fact  a  conditional  contract,  when  the  condition  has  been 
made  absolute  by  a  compliance  with  its  terms,  the  contract 
becomes  mutual  and  capable  of  enforcement  by  either 
party.  A  contract  for  the  sale  of  real  estate  at  the  option 
of  the  vendee  only,  upon  election  and  notice,  may  not  only 
be  specifically  enforced,  but  the  refusal  of  the  vendor  to 


'  Cooper  V.  Pena,  21  Cal.,  403.  In  this  case,  "  the  court  rightly,  and  in  entire 
accord  with  the  authorities,  held  that  as  the  court  could  not  specifically  enforce 
the  performance  of  the  personal  services,  the  remedy  was  not  mutual."  Vas- 
sault  V.  Edwards,  43  Cal.,  458,  per  Rhodes,  J. 

^  Chesterman  v.  Mann,  9  Hare,  206.     See  Bell  v.  Howard,  9  Mod.,  302,  304. 

^  Palmer  v.  Scott,  i  R.  &  M.,  391. 

"*  Lawrenson  v.  Butler,  i  Sch.  &  Lef.,  13;  Parkhurst  v.  Van  Cortlandt,  i 
Johns.  Ch.,  282  ;  Benedict  v.  Lynch,  lb.,  370  ;  Smith  v.  McVeigh,  3  Stoct.,  239. 

^  Hatton  V.  Gray,  2  Ch.  Cas.,  164  ;  Seton  v.  Slade,  7  Ves.,  265  ;  Fowie  v. 
Freeman,  9  lb.,  351  ;  Western  v.  Russell,  3  Ves.  &  B.,  192  ;  Ormond  v.  Ander- 
son, 2  Ball  &  B.,  363  ;  Clason  v.  Bailey,  14  Johns.,  484  ;  In  7-e  Hunter,  i  Edw. 
Ch.,  I  ;  Woodward  v.  Aspinwall,  4  Sandf.,  272  ;  Hawralty  v.  Warren,  18  N.  J. 
Eq.,  124;  Vandoren  v.  Robinson,  16  lb.,  256;  Green  v.  Richards,  23  lb.,  32  ; 
Schroeder  v.  Gemeinder,  10  Nevada,  355. 


268  CONTRACT    NOT    MUTUAL.  §  200. 

accept  the  purchase  money  will  not  destroy  the  mutuality, 
thouo;h  the  vendee  could  thereupon  withdraw  his  election/ 
If  the  owner  of  a  piece  of  land  executes  an  instrument  in 
writing  by  which  he  promises  to  convey  the  land  to  another 
provided  the  latter  will  erect  a  house  worth  five  thousand 
dollars  on  it  within  one  year,  and  pay  the  owner  a  certain 
price  for  the  land  within  two  years,  and  such  person  erects 
the  house  within  the  appointed  time,  without  dissent  by 
the  owner,  and  then  tenders  the  stipulated  price  and  de- 
mands a  deed,  a  court  of  equity  will  decree  a  conveyance. 
The  mutuality  and  consideration  consist  in  the  fact  that  the 
vendee  has  done,  upon  the  promise  of  the  vendor,  what  the 
latter  required  ;  and  it  is  immaterial  that  it  was  done  with- 
out entering  into  a  previous  undertaking  to  do  it. '    A  lease 


'  Corson  v.  Mulvany,  49  Pa.  St.,  88 ;  Boston  &  Maine  R.R.  v.  Bartlett,  3 
Cush.,  224.  Where  a  lease  was  given  with  the  option  of  the  lessee  to  purchase 
the  property  within  a  certain  time  for  a  given  sum,  it  was  held  that  the  offer  to 
sell  formed  a  part  of  the  consideration,  and  could  not  be  withdrawn  by  the 
lessor  before  notice  of  an  election  to  purchase.  Suffrain  v,  McDonald,  27  Ind., 
269.  The  court  said  :  "  Numerous  authorities  are  cited  upon  the  point  that  a 
mere  offer  to  sell  may  be  withdrawn  at  any  time  before  it  is  accepted.  That 
such  is  the  law  cannot  be  controverted.  But  the  agreement  under  considera- 
tion is  not  a  mere  naked  proposition  to  sell  the  lot,  nor  can  it  be  regarded  as 
separate  and  distinct  from  the  lease  of  the  lot  and  the  consideration  stated  in 
the  agreement.  The  stipulations  on  the  one  side  to  lease  the  lot  for  a  period  of 
two  years,  with  the  right  of  the  lessees  within  that  time  to  purchase  the  same 
at  the  price  and  on  the  terms  stated  in  the  agreement,  and  on  the  other  to  pay 
the  rent  agreed  upon,  and  to  erect  the  fence,  must  be  considered  as  constituting 
one  entire  agreement,  each  particularstipulation  forming  an  inducement  thereto. 
The  agreement  to  pay  the  rent  and  build  the  fence  must  be  deemed  to  have 
been  made  in  consideration,  as  well  for  the  privilege  of  becoming  the  purchasers 
of  the  lot,  as  for  its  use."  And  see  Stansbury  v.  Fringer,  11  Gill  &  Johns.,  149, 
to  the  same  effect,  in  which  the  court  said  :  "  Where  a  contract  consists  of  sev- 
eral distinct  and  separate  stipulations  on  one  side,  and  a  legal  consideration 
is  stated  on  the  other,  it  must  be  considered  that  the  entire  contract  was  in  the 
contemplation  of  the  parties  in  each  particular  stipulation,  and  formed  one  of 
the  inducements  therefor,  and  no  one  stipulation  can  be  supposed  to  result  from, 
or  compensate  for,  the  consideration,  or  any  part  of  it,  exclusive  of  other  stipu- 
lations, unless  the  parties  have  expressly  so  declared  ;  and  this  will  be  the 
case,  whether  the  consideration  be  a  sum  of  money  to  be  paid  in  gross,  or  a 
specific  act  to  be  performed,  or  several  payments  in  money,  or  several  acts  to 
be  performed."     And  see  D'Arras  v.  Keyser,  26  Pa.  St.,  249. 

*  Perkins  v.  Hadsell,  50  111.,  216.  See  Kerr  v.  Purdy,  50  Barb.,  24;  51  N.  Y., 
629.  A  written  proposition  to  sell  land,  signed  by  the  vendor  alone,  stating  that 
he  has  sold  the  land  to  the  purchaser  for  a  certain  sum,  a  portion  of  which 
has  been  paid,  and  that  the  money  paid  is  to  be  returned  if  the  title  prove  bad 
or  be  rejected,  the  vendee  to  be  allowed  twenty  days  in  which  to  examine  the 
title,  is  capable  of  being  specifically  enforced.  Vassault  v.  Edwards,  43  Cal., 
458  ;  Smith  &  Fleek's  Appeal,  69  Pa,  St.,  474.     An  estate  under  contract  of 


§  200.  WHERE    A    PARTV     HAS    AN    OPTION.  269 

having  been  given  with  a  stipulation  that  the  lessee  should 
have  the  privilege  of  purchasing  the  land  during  the  con- 
tinuance of  the  term,  it  was  held,  reversing  the  judgment 
of  the  court  below,  that  the  agreement  giving  the  option 
to  purchase  w^as  not  a  mere  personal  covenant,  but  a  right ; 
which,  though  resting  solely  with  the  lessee,  might  be  trans- 
ferred to  his  vendee,  and  enforced  at  his  election  with  the 
same  effect  as  if  the  contract  had  been  absolute  in  its  terms/ 
"The  privilege  conceded  to  the  lessee  to  purchase  within 
the  term  of  the  lease  is  as  much  a  term  of  the  contract  and 
binding  upon  the  lessor  as  any  other  term  of  the  instru- 
ment. The  lessee,  it  is  true,  was  not  bound  to  purchase. 
But,  upon  a  good  consideration,  the  lessor  bound  himself 
to  sell  if  the  lessee  wished  to  buy.  It  may  be  that  this  was 
only  a  proposition  until  accepted  by  the  lessee  ;  but,  upon 
his  acceptance,  it  became  a  valid  agreement.  It  is  not  easy 
to  perceive  why  a  man  may  not  as  well  agree  to  sell  prop- 
erty upon  the  condition  that  another  will  consent  to  buy, 
as  upon  any  other  condition,  or  absolutely." '  Such  a  stipu- 
lation in  a  lease  is  in  the  nature  of  a  continuing  offer  to 
sell,  and  when  accepted  by  the  lessee  a  contract  of  sale  is 
completed.'  Where  a  lessor  covenanted,  for  a  sum  named, 
to  sell  and  convey  the  property  to  the  lessee  at  any  time 
before  the  expiration  of  the  lease,  it  was  held  that  the  filing 
of  a  bill  before  the  end  of  the  term  by  the  assignees  of  the 
lessee,  alleging  that  the  complainants  were  ready  to  pay  the 


sale  is  regarded  as  converted  into  personalty  from  the  time  of  the  contract,  not- 
withstanding an  election  to  complete  the  purchase  rests  entirely  with  the  pur- 
chaser ;  and  if  the  seller  die  before  the  election  is  exercised,  the  purchase 
money  when  paid  will  go  to  his  executors  as  assets.  Baden  v.  Pembroke,  2 
Vern.,  213.  But  if,  from  defect  of  title,  insufficiency  of  contract,  or  from  other 
cause,  the  court  should  think  that  the  contract  ought  not  to  be  enforced,  the 
estate  will  go  to  the  heir  of  the  vendor  as  though  no  contract  had  ever  existed. 
Lacon  v.  Waters,  3  Atk.,  i  ;  Buckmaster  v.  Harrop.  7  Ves.  Jr.,  341  ;  Rose  v, 
Cunynghame,  11  lb.,  550. 

'  Kerr  v.  Day,  14  Pa.  St.,  112. 

■2  Baldwin,  J.,  in  De  Rutte  v.  Muldrew,  16  Cal.,  505.  And  see  Laffan  v.  Nagle, 
9  lb.,  662  ;  Hall  v.  Canter,  40  lb.,  65. 

'  Willard  v.  Tayloe,  8  Wall,  557  ;  Napier  v.  Darlington,  70  Pa.  St.,  64. 


270  CONTRACT    NOT    MUTUAL.  §  20T. 

Stipulated  sum  and  desired  a  conveyance,  entitled  them  to 
a  decree  for  specific  performance.' 

§  201.  Where  contract  is  signed  by  only  .one  party. — 
There  may  be  a  mutual  contract  to  which  both  parties  have 
given  their  assent,  though  the  evidence  of  such  assent  may 
exist  in  a  different  form  as  regards  the  two  parties.  As  to 
one,  it  may  be  verbal,  while  the  other's  is  expressed  by  his 
signature  in  writing ;  and  the  latter  may  be  bound  to  per- 
form his  contract,  while  the  former  might  avoid  his,  by 
reason  of  the  statute  of  frauds.'  It  has  been  said  that  the 
ground  upon  which  courts  of  equity  proceed  in  such  cases, 
is,  that  as  the  statute  of  frauds  requires  only  the  signature 
of  the  party  to  be  charged,  to  become  legally  binding  upon 
him,  equity,  finding  a  contract  legally  binding,  will  decree 
its  performance.'  Another  reason  suggested,  is,  that  by 
filing  the  bill,  the  plaintiff  has  waived  the  original  want  of 
mutuality,  and  rendered  the  remedy  mutual.'  Both  of  these 
reasons  have  been  objected  to  as  insufficient ;  but  the  prin- 
ciple is  well  settled.  Thus,  specific  performance  has  been 
enforced  of  a  deed  poll.^     So  also  of  a  bond." 

'  Mauglin  v.  Perry,  35  Md.,  352. 

-  Hatton  V.  Grey,  5  Vin.  Abr.,  527,  PI.  17  ;  S.  C.  2  Cas.  in  Ch.,  164;  Back- 
house V.  Crosby,  2  Eq.  Cas.  Abr.,  32.  See  Morgan  v.  Holford,  i  Sm.  &  Gif., 
loi  ;  Old  Colony  R.R.  Corp.  v.  Evans,  6  Gray,  25  ;  post,  §  239.  Where  the  de- 
fendant alone  signed  a  contract  in  writing,  and  the  plaintiffs  acted  on  this 
promise  of  the  defendant,  and  expended  large  sums  in  carrying  out  the  conditions 
and  stipulations  of  the  agreement  on  their  part,  it  was  held  that  the  plaintiffs 
were  entitled  to  a  decree  for  specific  performance.  Old  Colony  R.R.  Corp.  v. 
Evans,  supra.  See  Douglass  v.  Spears,  2  Nott.  &  McCord,  207  ;  Clason  v. 
Bailey,  14  Johns.,  484;  M'Crea  v.  Purmort,  16  Wend.,  460;  In  re  Hunter,  i 
Edw.  Ch.,  5.  "  The  bargain  was  undoubtedly  mutual,  although  the  parties 
might  not  have  been  equally  vigilant  in  obtaining  the  legal  written  evidence  to 
prove  it."  Parker,  C.  J  ,  in  Penniman  v.  Hartshorn,  13  Mass.,  91.  A  written 
agreement  for  a  sale  of  goods  reciting  that  the  seller  agrees  to  deliver  the  goods, 
describing  them,  to  the  buyer,  naming  him,  for  a  given  sum,  deliver)'  to  be  made 
in  a  specified  manner,  at  a  time  indicated,  "cash  on  delivery,"  is  a  valid  con- 
tract at  common  law,  capable  of  being  specifically  enforced  if  accepted  by  the 
buyer,  without  proving  that  the  latter  ever  signed  a  promise  to  accept  or  pay  for 
the  goods  ;  the  words  "  cash  on  deliver}' "  importing  a  promise  to  pay  when  the 
goods  are  delivered.     Justice  v.  Long,  42  N.  Y.,  493. 

^  Rogers  v.  Saunders,  16  Me.,  92,  per  Shepley,  J. 

^  Fowle  v.  Freeman,  9  Ves.,  351  ;  Western  v.  Russell,  3  V.  &  B.,  192  ;  Martin 
V.  Mitchell,  2  J.  &  W.,  413  ;  Flight  v.  BoUand,  4  Russ.,  298  ;  Shirley  v.  Shirley, 
7  Blackf ,  452. 

*  Otway  v.  Braithwaite,  Finch,  405.         °  Butler  v.  Powis,  2  Coll.  C.  C,  156. 


§§  202,  203.   ONLY  A  PARTIAL  PERP^ORMANCE.  2/1 

§  202.  Waiver  of  objection. — Notwithstanding  the  con- 
tract be  incapable  of  enforcement  for  want  of  mutuahty, 
the  objection  may  be  waived  by  the  other  party.  Where, 
for  instance,  a  person  contracts  to  sell  that  to  which  he  has 
no  title,  or  not  such  as  he  agrees  to  convey,  and  the  agree- 
ment is  not  mutual  on  account  of  the  inability  of  the  vendor 
to  fulfil,  if  the  purchaser  proceed  with  the  negotiation  by 
investigating  the  title,  or  concurring  in  proceedings  for  the 
purpose  of  remedying  the  defect,  he  cannot  afterward  set 
up  the  original  want  of  mutuality  in  the  contract  after  the 
title  is  satisfactorily  completed.'  So,  where,  owing  to  the 
relation  the  parties  sustain  toward  each  other,  there  is  no 
mutuality  of  obligation,  the  contract  binding  one  and  not 
the  other,  the  latter  may,  by  suit,  waive  his  personal  ex- 
emption, and  specifically  enforce  the  contract :  as  in  the 
case  of  a  suit  by  a  cestui  que  trust  against  his  trustee  for 
the  performance  of  a  contract  of  sale  ;  such  a  contract 
being  obligatory  on  the  trustee,  but  not  on  the  beneficiary." 

§  203.  Where  there  can  only  be  a  partial  performance. — 
Although  when  it  is  not  in  the  power  of  the  vendor  to  con- 
vey all  he  agreed  to  do,  he  cannot  enforce  the  contract 
against  the  purchaser,  yet  the  latter  will  be  entitled  to  all 
the  vendor  is  able  to  convey,  with  compensation  for  what 
is  lacking.  "  If  a  man,  having  partial  interest  in  an  estate, 
chooses  to  enter  into  a  contract  representing  it  and  agree- 
ing to  sell  it  as  his  own,  it  is  not  competent  to  him  after- 
ward to  say,  that  though  he  has  valuable  interests,  he  has 
not  the  entirety,  and  therefore  the  purchaser  shall  not  have 
the  benefit  of  his  contract.  For  the  purpose  of  this  juris- 
diction, the  person  contracting  under  these  circumstances 


'  Salisbuiy  v.  Hatcher,  2  Y.  &  C.  C.  C,  54  ;  Hoggart  v.  Scott,  i  R.  &  M.,  293, 
^  Lacey,  ex  parte,  6  Ves.,  625.  Another  example  is  presented  in  the  case  of  a 
voluntary  settlor  who  is  incapable  of  enforcing  the  contract  against  the  purchaser. 
Yet  the  latter  may  waive  the  want  of  mutuality,  and  enforce  it  against  him. 
Smith  V.  Garland,  2  Men,  123;  Johnson  v.  Legard,  T.  &  R.,  281  ;  Buckle  v. 
Mitchell,  18  Ves.,  100.  Although  an  infant  cannot  waive  his  exemption  from 
liability  on  his  contracts,  during  his  minority,  yet  if  he  brings  the  suit  after  he  is 
of  age,  specific  performance  will  be  decreed.    Vassault  v.  Edwards,  43  Cal.,  458. 


2/2  CONTRACT    NOT    MUTUAL.  §  203. 

is  bound  by  the  assertion  in  his  contract ;  and  if  the  vendee 
chooses  to  take  as  much  as  he  can  have,  he  has  a  right  to 
that,  and  to  an  abatement ;  and  the  court  will  not  hear  the 
objection  by  the  vendor  that  the  purchaser  cannot  have  the 
whole.'"  The  principle  under  consideration  was  illustrated 
in  the  following  case  :  A.,  who  was  tenant  for  life  of  cer- 
tain estates,  agreed  with  B.  that  the  latter  should  open  and 
work  certain  mines,  and  enjoy  the  minerals  raised  for  ten 
years,  if  A.  or  his  issue  male  should  so  long  live,  at  a  yearly 
rent  of  twenty-five  pounds.  A  suit  for  specific  performance 
having  been  brought  by  B.,  A.  objected  that  as  he  was  only 
tenant  for  life,  and  subject  to  account  for  waste,  the  agree- 
ment was  inconsistent  with  his  power.  Specific  perform- 
ance was,  however,  decreed  with  compensation. "" 

'  Lord  Eldon  in  Mortlock  v.  Buller,  10  Ves.,  315  ;  and  see  Atty.  Gen.  v.  Day, 
I  Ves.  Sen.,  224;  Milligan  v.  Cooke,  16  Ves.,  i  ;  Dale  v.  Lister,  lb.,  7  ;  Hill  v. 
Buckley,  17  lb  ,  394;  Western  v.  Russell,  3  V.  &  B.  187  ;  Neale  v.  Mackenzie, 
I  Ke.,  474 ;  Bennett  v.  Fowler,  2  Beav.,  302  ;  Sutherland  v.  Briggs,  i  Hare,  26, 
34;  Wilson  V.  Williams,  3  Jur.  N.  S.,  810  ;  Hooper  v.  Smart,  L.  K.  18,  Eq.  683  ; 
post,  §  499. 

-  Cleaton  v.  Govver,  Finch,  164.  And  see  Lord  Bolingbroke's  case,  i  Sch.  & 
Lef.,  19,  referred  to  in  Gt.  Western  R.R.  Co.  v.  Birmingham  &  Oxford  Junction 
R.R.  Co.,  2  Phil.,  605.  The  ground  taken  by  the  court  in  these  and  similar  cases, 
has  not  been  uniformly  sustained  by  the  authorities.  A  tenant  for  life  contracted 
with  A.  B.  to  grant  a  lease  which  required  the  consent  of  trustees.  The  consent 
was  refused,  the  agreement  being  in  fraud  of  the  power.  In  a  suit  brought  by  A. 
B.  against  the  tenant  for  life,  he  insisted  that  he  was  at  least  entitled  to  such  a 
lease  as  the  tenant  for  life  could  grant  out  of  his  estate.  The  bill  w^as,  however, 
dismissed  for  want  of  mutuality.  Lord  Chancellor  Redesdale  said  :  "  No  man 
signs  an  agreement  but  under  a  supposition  that  the  other  parly  is  bound  as  well 
as  himself;  and,  theretore,  if  the  other  party  is  not  bound,  he  signs  it  under  a 
mistake."  The  court  held  that  the  principle  above  stated,  is  only  applicable 
where,  on  the  faith  of  an  agreement,  one  party  has  put  himself  in  a  situation 
from  which  he  cannot  extricate  himself,  and  is  therefore  willing  to  forego  i)art 
of  his  agreement  in  order  to  save  himself  from  the  injury  he  would  sustain  unless 
he  w-ere  to  get  such  an  execution  of  the  contract  as  the  defendant  could  give. 
Lawrenson  v.  Butler,  i  Sch.  &  Lef.,  13.  In  another  case,  the  same  lord  chan- 
cellor, in  remarking  upon  the  specific  performance  of  contracts  by  a  tenant  for 
life  exceeding  his  power,  said  :  "  I  think  courts  of  equity  should  never  enforce 
such  contracts,  whether  with  the  view  to  the  party  himself,  or  to  the  person  en- 
titled in  remainder.  In  the  first  place,  it  is  unconscionable  in  the  tenant  for  life 
to  execute  such  a  lease,  because  it  brings  an  incumbrance  on  the  estate  of  the 
remainder-mnn,  and  puts  him  to  litigation  to  get  rid  of  it.  As  to  the  tenant  for 
life  himself,  it  is  compelling  him  to  do  what  is  to  be  the  foundation  of  a  future 
action  for  damages  if  he  die  before  the  twenty-one  years.  The  court  will  never 
do  this,  but  will  leave  the  party  at  once  to  bring  his  action  for  damages.  And  I 
also  conceive  that  this  sort  of  contract,  obtained  by  a  person  who  knew  at  the 
time  the  nature  of  the  title,  is  unconscionable  in  him,  as  he  makes  himself  a  party 
knowingly  to  that  which  is  a  fraud  on  the  remainder-man  ;  and  under  such  cir- 


§§  204,  205.       PARTIAL  PERFORMANCE  WOULD  INJURE.  273 

§  204.  Extent  of  deficiency  incapable  of  computation. — 
There  is  an  obstacle  to  the  exercise  of  the  jurisdiction,  where 
the  difference  in  value  between  the  interest  agreed  to  be 
conveyed,  and  the  interest  possessed  by  the  vendor,  cannot 
be  ascertained.  In  cases  of  this  nature,  performance  will 
not  be  enforced  with  compensation ;  for  while  the  vendor 
has  no  claim  to  the  interposition  of  equity,  there  is  noth- 
ing to  guide  the  court  in  affording  a  remedy.  Thus,  w^here 
a  person  agreed  to  sell  the  fee,  and  the  interest  he  was  able 
to  convey,  was  a  life  estate  and  an  ultimate  remainder  in 
fee  in  default  of  issue  male,  a  decree  for  specific  perform- 
ance was  withheld.'  So,  where  compensation  was  sought 
for  the  difference  between  arbitrary  and  fixed  fines,  the 
former  being  likely  to  vary  as  the  property  increased  in 
value,  it  was  held  that  as  it  was  impossible  to  compute  such 
a  difference,  a  reference  to  the  master  for  that  purpose,  was 
erroneous.*  But  it  will  of  course  he  competent  for  the 
purchaser  to  take  the  vendor's  interest  without  compensa- 
tion, if  he  choose  to  do  so. 

§  205.  Where  partial  performance  would  injure  a 
stranger. — If,  notwithstanding  the  interest  of  the  vendor, 
less  than  that  contracted  for,  be  capable  of  ascertainment, 
such  partial  interest  may,  if  conveyed,  impair  the  rights  of 
third  persons  in  the  property,  specific  performance  will  not 
be  decreed.  Accordingly,  where  a  tenant  for  life  without 
impeachment  of  waste,  under  a  strict  settlement,  entered 
into  a  contract  for  the  sale  of  the  fee,  the  court  refused  to 
compel  him  to  convey  his  life  interest,  on  the  ground  that 

cumstances  he  had  no  claim  to  the  assistance  of  a  court  of  equity."  Harnett  v. 
Yielding,  2  Sch.  &  Lef.,  549.  These  views  are  different  from  those  entertained 
by  other  judges.  They  were  distinctly  disapproved  by  Lord  St.  Leonards  in 
Dyas  V.  Cruise,  2  John.  &  Lat.,  460,  487,  where  in  speaking  of  the  dismissal  of 
the  bill  in  Lawrenson  v.  Butler,  supra,  he  said  :  "  I  doubt  whether  that  can  be 
maintained,  as  the  law  of  the  court,  where  there  is  no  fraud  in  the  transaction. 
If  there  be  a  bon%  fide  intention  to  execute  the  power,  and  the  contract  cannot 
be  carried  into  effect,  I  do  not  see  why  the  interest  of  the  tenant  for  life  should 
not  be  bound  to  the  extent  he  is  able  to  bind  it,  unless  there  is  some  inconveni- 
ence." 

'  Thomas  v.  Bering,  i  Ke.,  729.     S&& posl,  §  507. 

"White  v.  Cuddon,  8  CI.  &  Fin.,  766. 

18 


274  CONTRACT    NOT    MUTUAL.  §   206. 

a  Stranger  would  be  likely  to  prejudice  the  rights  of  those 
in  remainder  by  committing  waste.' 

§  206.  Ill  case  of  a  very  great  deficiency. — The  contract 
will  not  be  enforced  when  a  large  part  of  the  property  can- 
not be  conveyed  :  as  where  a  person  agreed  to  sell  a  manu- 
factory, and  it  was  found  that  he  owned  only  nine-sixteenths 
of  the  whole,  and  that  they  were  subject  to  a  debt  which 
would  absorb  nearly  all  of  the  purchase  money/  When, 
however,  the  contract  shows  that  the  intention  was  to  sell 
whatever  interest  the  vendor  had,  specific  performance  will 
be  decreed,  notwithstanding  there  is  a  great  difference  be- 
tween the  property  supposed  to  have  been  sold,  and  that 
which  the  vendor  can  convey  ;  the  purchaser  in  such  case 
taking  upon  himself  the  risk  of  not  getting  all  he  expected. 
Where,  for  instance,  persons  who  only  owned  two  twenty- 
first  parts,  agreed  to  sell  two  sixth  parts,  with  all  other  their 
rights  and  interests  in  the  property,  the  contract  was  en- 
forced ;  such  a  case  being  altogether  different  from  a  con- 
tract for  the  sale  of  an  entirety  where  the  vendor  has  a  title 
to  onlv  a  part.^  It  has  been  doubted  whether,  where  the 
purchaser  knows  that  it  is  out  of  the  power  of  the  vendor 
to  convev  the  whole  of  what  he  contracts  for,  he  wnll  be 
entitled  to  what  the  vendor  can  convey.'  Where  the  vendors 
owned  but  three-fourths  of  the  property  they  contracted  to 
sell,  which  the  purchaser  knew,  or  had  good  reason  to  be- 
lieve, when  he  brought  his  suit,  it  was  held  that,  though  he 
might  have  maintained  an  action  for  damages,  yet  as  he  had 
filed  a  bill  for  specific  performance,  he  was  not  entitled  to 
any  abatement  of  the  purchase  money,  but  that  he  might 
have,  without  abatement,  the  three-fourths  which  the  ven- 
dors could  convey.'  If  the  purchaser  is  aware  of  an  intended 
fraud  by  the  vendor,  he  will  not  be  entitled  to  that  which 
the  vendor  can  convey. ° 

•  Thomas  v.  Dering,  supra  ;  Wythes  v.  Lee,  3  Drew,  396.     And  see  Graham 
V.  Oliver,  3  Beav.,  124;  Cleaton  v.  Gower,  Finch,  164.     But  se^t  post,  §  510. 

•  Wheatley  v.  Slade,  4  Sim.,  126.  'Jones  v.  Evans,  17  L.  J.  Ch.,  469. 

*  Beeston  v.  Stuteley,  27  L.  J.  Ch.,  156.     See  post,  §  506. 

*  Maw  V.  Topham,  19  Beav.,  576. 

'  O'Rourke  v.  Percival,  2  Ball  &  B.,  58;  Fry  on  Spec.  Perform.,  142. 


CHAPTER  VII. 

ILLEGALITY    OF    CONTRACT. 

207.  Illegal  contracts  not  enforced. 

208.  PiesLimption  in  favor  of  legality  of  contract. 

209.  On  what  principle  defence  allowed. 

210.  Relative  delinquency  of  the  parties  when  considered. 

211.  In  case  of  illegality  of  consideration. 

212  Where  an  act  resulting  from  an  illegal  contract  is  a  valid  consideration 
for  a  lawful  agreement. 

213.  Contracts  illegal  at  common  law,  as  against  public  policy. 

214.  Where  the  consideration  is  to  do  an  immoral  act. 

215.  Contract  how  affected  by  prohibition  in  statute. 

216.  In  case  of  an  usurious  contract. 

217.  Gaming  and  wagering  contracts,  and  such  as  are  entered  into  to  em- 

barrass criminal  prosecutions. 

218.  Contracts  unlawful  from  the  relation  sustained  by  the  parties  toward 

each  other. 

§  207.  W/iej'c  it  is  in  violation  of  law. — No  court  will 
lend  its  aid  to  give  effect  to  a  contract  which  is  illegal, 
whether  it  violate  the  common  or  the  statute  law,  either 
expressly  or  by  implication,'  Such  a  contract  cannot  be 
enforced  even  with  the  consent  of  the  parties  ; '  nor  though, 
after  the  making  of  the  contract,  the  statute  is  repealed  ; ' 
or  notwithstanding:  it  was  les'al  when  it  was  entered  into 
and  has  since  become  illegal'     In  the  latter  case,  however. 


'  Knowles  v.  Haughton,  1 1  Ves.,  168  ;  Ewing  v.  Osbaldiston,  2  Myl.  &  Cr., 
53  ;  De  Begnis  v.  Armistead,  10  Bing.,  107 ;  Gas  Light  Co.  v.  Turner,  7  Scott, 
7;'9 ;  Wetherell  v.  Jones,  3  B.  &  Ad.,  221  ;  Seidenbender  v.  Charles,  4  Serg.  & 
Rawle,  159;  Hall  v.  Mullin,  5  Har.  &  Johns.,  193  ;  Scott  v.  Duffy,  14  Pa.  St., 
18;  Boutwell  V.  Foster,  24  Vt.,  485  ;  Brian  v.  V/illiamson,  7  How.  Miss.,  14; 
Buxton  V.  Hamblen,  32  Me.,  448.  "  It  is  a  well-settled  principle  of  the  common 
law  that  no  court  of  justice  will  lend  its  aid  to  enforce  the  performance  of  any 
contract  or  agreement  which  was  intended  by  the  parties  thereto  to  contravene 
the  provisions  of  a  positive  law,  or  the  performance  of  a  contract  which  is  con- 
trary to  public  policy."     Pratt  v.  Adams,  7  Paige  Ch.,  615,  per  Walworth,  Ch. 

'  Fowler  v.  Scully,  72  Pa.  St.,  456,  =  Gilliland  v.  Phillips,  i  S.  C,  52. 

^  Atkinson  v.  Ritchie,  10  East.,  530,  534 ;  Barker  v.  Hodgson,  3  M.  &  S.,  267  ; 
Esposito  V.  Bowden,  4  Ell.  &  Bl.,  963.  And  see  Winnington  v.  Briscoe,  8 
Mod.,  51. 


276  ILLEGALITY    OF    CONTRACT.  §   2o8. 

the  court  will  seek  to  carry  out  the  intentions  of  the  parties 
so  far  as  it  can  be  done  without  a  violation  of  the  law/ 

§  208.  Burden  of  proof. — A  contract  will  be  presumed 
to  be  legal  until  the  contrary  is  shown  ;  and  if  it  be  sus- 
ceptible of  two  constructions,  one  legal  and  the  other  il- 
legal, the  former  will  be  adopted.'  The  burden  of  proof 
therefore  rests  on  the  party  taking  the  objection,  though 
there  has  been  some  difference  of  opinion  on  this  point. 
Thus,  in  one  case  it  was  held  that  before  the  specific  per- 
formance of  a  contract  would  be  decreed,  it  must  be  shown 
that  there  was  not  a  reasonable  ground  for  claiming  that 
the  agreement  was  illegal,  or  against  the  policy  of  the  law.' 
While,  in  another  case,  the  court  said:  "The  agreement 
must  be  legal  or  illegal,  and  it  is  not  within  the  discretion 
of  the  court  to  refuse  specific  performance  because  an 
agreement  savors  of  illegality.  It  must  be  shown  to  be 
illegal."  '     "The  power  to  declare  a  contract  void  for  being 

'  Bettesworth  V.  Dean  of  St.  Paul,  Sel.  Cas.  in  Ch.,  66.  Although  a  court 
will  not  lend  its  aid  to  carry  out  an  illegal  contract,  yet  if  the  contract  is  actually 
at  an  end,  or  is  put  an  end  to,  the  court  will  interfere  to  prevent  those  who  have 
obtained  under  the  illegal  contract  money  belonging  to  other  persons  on  the 
representation  that  the  contract  was  legal,  from  keeping  the  money.  Sykes  v. 
Beadon,  L.  R.  11,  Ch.  D.  170.  A  distinction  has  been  made  between  the  case 
of  one  of  two  parties  to  an  illegal  contract  suing  the  other  party,  and  the  case 
of  his  suing  a  third  person  for  money  received  under  the  contract.  In  Tenant 
V.  Elliott,  I  B.  &  P.,  3,  there  was  an  illegal  contract  between  the  plaintiff  and  a 
third  person.  The  defendant  received  money  from  the  third  person  to  the  use 
of  the  plaintiff.  In  an  action  by  the  plaintiff  against  the  defendant  to  recover 
the  money,  it  was  held  that  although  the  plaintiff  could  not  have  forced  the 
third  person  to  pay  under  the  illegal  contract,  yet  that  he  vvas  entitled  to  sue  the 
defendant,  who  could  not  set  up  the  illegality  of  the  contract,  having  received 
the  money  for  the  use  of  the  plaintiff.  In  Farmer  v.  Russell,  i  B.  &  P.,  296, 
there  was  an  illegal  contract  between  the  plaintiff  and  a  third  person  at  C.  to 
deliver  counterfeit  half-pence  to  the  latter.  The  defendants  were  carriers  em- 
ployed by  the  plaintiff  to  deliver  the  goods,  and  to  receive  the  money.  In  an 
action  by  the  plaintiff  against  the  carriers  to  recover  the  money,  it  was  said 
that  the  original  contract  being  illegal  they  could  not  be  compelled  to  pay.  It 
was,  however,  decided  against  them,  the  money  having  been  paid  over  at  C.  for 
the  plaintiff's  use. 

'  Mittelholzer  v.  FuUarton,  6  Q.  B.,  989 ;  Lewis  v.  Davison,  4  M.  &  W.,  654, 
657.  "  Illegality  is  never  presumed  ;  on  the  contrary,  everything  must  be  pre- 
sumed to  have  been  legally  done  until  the  contrary  appear."  Bennett  v.  Clough, 
I  B.  &  A.,  461. 

2  Johnson  v.  Shrewsbur)'  &  Birmingham  R.R.  Co.,  3  De  G.  M.  &  G.,  914.  And 
see  City  of  London  v.  Nash,  3  Atk.,  512  ;  S.  C  ,  i  Ves.  Sen.,  12. 

*  Aubin  v.  Holt,  2  K.  &  J.,  66.  And  see  Sissons  v.  Dixon,  5  B.  &  C,  758  ;  8 
D.  &  R.,  526 ;  Gale  v.  Leckie,  2  Stark,  107. 


§§   209,   2IO.      WHERE  PARTIES  NOT  EQUALLY  GUILTY.  277 

in  contravention  of  sound  public  policy  is  a  very  delicate 
and  undefined  power,  and,  like  the  power  to  declare  a 
statute  unconstitutional,  it  should  be  exercised  only  in  cases 
free  from  doubt." ' 

§  209.  Grotind  of  objection. — The  defence  of  the  illegality 
of  contracts  differs  from  that  of  fraud,  which  is  private  and 
personal  and  capable  of  being  waived  by  the  injured  party, 
in  its  being  for  the  public  benefit,  rather  than  out  of  regard 
to  individual  interests.  This  follows  from  the  very  consti- 
tution of  courts  which  are  instituted  to  administer  justice  in 
accordance  with  the  law.  "  The  objection  that  a  contract 
is  immoral  or  illegal  as  between  plaintiff  and  defendant, 
sounds,  at  all  times,  very  ill  in  the  mouth  of  the  defendant. 
It  is  not  for  his  sake,  however,  that  the  objection  is  ever 
allowed  ;  but  it  is  founded  in  general  principles  of  policy, 
which  the  defendant  has  the  advantage  of,  contrary  to  the 
real  justice  as  between  him  and  the  plaintiff,  not  for  the 
sake  of  the  defendant,  but  because  the  court  will  not  lend 
their  aid  to  such  a  plaintiff.  So,  if  a  plaintiff  and  defend- 
ant were  to  change  sides,  and  the  defendant  were  to  bring 
his  action  against  the  plaintiff,  the  latter  would  then  have 
the  advantage  of  it.'"  The  principle  on  which  this  defence 
rests  is  shown  by  this  :  that  where,  in  a  suit  for  specific  per- 
formance, a  fact  not  put  in  issue  by  either  party  comes  out 
on  the  evidence  affecting  the  legality  of  the  contract,  it  will 
be  noticed  by  the  court,  which,  before  proceeding,  will 
direct  an  inquiry."  Such  a  defence,  however,  when  the  de- 
fendant has  had  the  benefit  of  the  contract,  is  not  regarded 
by  the  court  with  entire  favor." 

§  210.  Where  the  parties  are  not  equally  gicilty. — The 
court,  in  such  cases,  acts,  in  a  certain  sense,  irrespective  of 

•  Richmond  v.  Dubuque,  etc.,  R.R.  Co.,  26  Iowa,  191. 

^  Lord  Mansfield  in  Holman  v.  Johnson,  Cowp.,  343.  And  see  Parsons  v. 
Thompson,  i  H.  Bl.,  322;  Moore  v.  Adams,  8  Ohio,  372;  Foote  v.  Emerson, 
10  Vt.,  338 ;  Rowan  v.  Adams,  i  Sm.  &  Marsh,  45. 

»  Parken  v.  Whitby,  T.  &  R.,  366 ;  Evans  v.  Richardson,  3  Men,  469. 

^  Shrewsbury  &  Birmingham  R.R.  Co.  v.  London  &  Northwestern  R.R.  Co., 
16  Beav.,  44. 


278  ILLEGALITY    OF    CONTRACT.  §   2  ID. 

the  moral  obligation  of  the  parties.  If  two  persons  agree 
to  do  some  unlawful  act  to  which  both  are  priv^,  and  one 
fulfils  on  his  part,  the  other  has  no  moral  right  to  refuse 
performance  of  that  which  is  not  immoral  outside  the 
general  end  of  the  contract.  But  such  refusal  is  a  wrong 
for  which  no  remedy  is  afforded  by  law.  Unless,  however, 
the  parties  are  in  pari  delicto,  as  well  2.^  particeps  criminis, 
the  court  will  afford  relief  to  the  more  innocent  party,  where 
equity  requires  it."  "  In  respect  to  offences  in  which  is  in- 
volved any  moral  delinquency  or  moral  turpitude,  all  parties 
are  deemed  equally  guilty,  and  courts  will  not  inquire  into 
their  relative  guilt.  But  where  the  offence  is  merely  malum 
prohibitum,  and  is  in  no  respect  immoral,  it  is  not  against 
the  policy  of  the  law  to  inquire  into  the  relative  delinquency 
of  the  parties,  and  to  administer  justice  between  them, 
although  both  parties  are  wrong-doers.""^ 

'  Reynell  v.  Sprye,  21  L.  J.  Ch.,  633,  651  ;  Tracy  v.  Talmage,  14  N.  Y.,  162  ; 
Freelove  v.  Cole,  41  Barb.,  318.  In  the  case  last  cited,  A.  obtained  from  B.  and 
his  wife,  without  consideration,  a  conveyance  of  B.'s  farm,  containing  about  one 
hundred  and  fifteen  acres,  on  a  parol  promise  to  reconvey  the  same  to  B.'s  wife. 
A.  refused  to  fulfil  his  agreement,  and  set  up  in  defence  to  a  suit  brought 
against  him  by  B.  and  wife  for  specific  performance,  that  such  conveyance  was 
made  by  B.  to  hinder,  delay,  and  defraud  his  creditors.  It  was  proved  that  B., 
at  the  time  of  the  conveyance,  had  become  incompetent  to  manage  his  business 
with  ordinary  prudence  and  discretion,  that  A.  was  B.'s  son-in-law,  and  an  at- 
torney, and  that  he  was  applied  to  by  B.  and  his  wife  for  advice  to  aid  them  in 
the  disposition  of  the  property,  and  that  the  same  was  conveyed  to  A.  at  his  in- 
stance. It  was  further  shown  that  the  object  of  B.  in  making  the  conveyance  to 
A.,  was  to  place  the  property,  for  the  time  being,  beyond  the  reach  of  B.'s 
creditors,  and  then  to  have  it  conveyed  to  B.'s  wife,  to  be  held  by  her  for  the 
support  of  B.  and  his  family.  Held,  that  the  parties  were  not  iti  pari  delicto, 
and  that  the  decree  of  the  court  below  that  the  defendant  execute  and  deliver  a 
conveyance  of  the  property  to  B.'s  wife,  should  be  affirmed  with  costs.  In  Ford 
v.  Harrington,  16  N.  Y.,  285,  A.  was  in  debt  to  B.  in  the  sum  of  sixty  dollars. 
A.  had  a  contract  for  certain  land,  worth  about  four  hundred  dollars,  on  which 
there  was  an  unpaid  balance  of  thirty-six  dollars.  C,  an  attorney-at-law,  being 
applied  to  by  A.,  to  know  if  his  creditor  could  reach  this  land,  C.  replied  in  the 
affirmative,  and  advised  A.  to  assign  the  contract  to  him,  to  prevent  its  being 
subjected  to  the  claim  of  B.,  saying  that  when  he  had  settled  with  B.  he  would 
reassign  the  contract  to  A.  A.  having  followed  the  attorney's  advice,  the  latter 
refused  to  do  as  he  had  agreed.  It  was  held  that,  as  C.  was  an  attorney,  the 
law  would  set  aside  the  agreement  made  with  his  client  by  which  the  property 
was  put  into  his  hands  to  keep  it  out  of  the  reach  of  his  client's  creditors,  and 
that  C.  should  convey  the  land  to  A.  The  decision  was  put  upon  the  ground 
that  C.  took  advantage  of  the  trust  and  confidence  reposed  in  him  to  procure  the 
assignment,  and  that  the  parties  were  not  in  pari  delicto,  and  it  was  not  con- 
formable with  the  rules  of  equity  to  allow  a  man  to  retain  an  advantage  thus  ob- 
tained. See  Sandfoss  v.  Jones,  35  Cal.,  481. 
'  Wilde,  J.,  in  Lowell  v.  Boston  &  Lowell  R.R.  Co.,  23  Pick.,  24.     And  see 


§   211.       WHERE    THE    CONSIDERATION    IS    UNLAWFUL.  279 

§  211.  Where  the  consideration  is  unlawful. — The  ille- 
gality may  be  as  to  the  consideration,  or  as  to  the  stipula- 
tions of  the  contract.  A  court  will  not  enforce  an  execu- 
tory contract  founded  on  an  illegal  consideration  :  as  where 
a  creditor  agreed  with  his  debtor  that  if  the  latter  would 
secure  the  claim  of  the  former,  he  would  dismiss  proceed- 
ings in  bankruptcy  commenced  by  him,  such  a  contract 
being  an  abuse  of  the  process  of  the  law ; '  or  where  a  bid- 
der at  an  auction  sale  agreed  with  A.,  who  was  present  at 
the  sale,  that  if  A.  would  not  bid  against  him  he  would  di- 
vide the  land  with  him,  such  an  agreement  being  a  fraud 
on  the  vendor."  So,  specific  performance  will  not  be  de- 
creed of  a  contract  growing  immediately  out  of  and  con- 
nected with  an  act,  or  with  another  contract  which  is  ille- 
gal or  immoral ; '  as  where  the  price  paid  for  real  estate  was 
greatly  less  than  the  land  was  worth,  and  the  purchase  was 
made  in  order  to  enable  the  vendor  to  leave  the  State  to 
avoid  a  prosecution  for  felony,"  If  part  of  an  entire  con- 
sideration is  illegal,  the  contract  is  void ; "  but  it  is  other- 


Mount  V.  Waite,  7  Johns.,  434;  Atlas  Bank  v.  Nahant  Bank,  3  Mete,  581. 
"  Where  both  parties  are  in  delicto,  concurring  in  an  illegal  act,  it  does  not  al- 
ways follow  that  they  stand  in  pari  delicto ;  for  there  may  be,  and  often  are, 
very  different  degrees  in  their  guilt.  One  party  may  act  under  circumstances  of 
oppression,  imposition,  hardship,  undue  intiuence,  or  great  inequality  of  age  or 
condition,  so  that  his  guilt  may  be  far  less  in  degree  than  that  of  his  associate  in 
the  offence.  And  besides,  there  may  be,  on  the  part  of  the  court  itself,  a  neces- 
sity of  supporting  the  public  interest  or  public  policy,  in  many  cases,  however 
reprehensible  the  acts  of  the  parties  may  be."  Story's  Eq.  Juris.,  Sec.  300.  See 
Browning  v.  Morris,  2  Cowp.,  790;  Osborne  v.  Williams,  18  Ves.,  379;  Smith 
V.  Bromley,  2  Doug.,  696 ;  VVheaton  v.  Hibbard,  20  Johns.,  290.  The  general 
rule  that  courts  will  not  enforce  contracts  prohibited  by  statute,  nor  allow  the 
recovery  of  money  paid  in  pursuance  of  them,  but  will  leave  the  parties  without 
remedy,  whenever  they  are  in  pari  delicto,  is  not  applicable  when  the  contract 
is  prohibited  for  the  mere  protection  of  one  of  the  parties  against  an  undue  ad- 
vantage which  the  other  party  is  supposed  to  possess  over  him.  Deming  v. 
State,  23  Ind.,  416;  Scotten  v.  State,  51   Jb.,  52. 

'  Paton  V.  Stewart,  78  111.,  481.  "■  Whitaker  v.  Bond,  63  N.  C  ,  290. 

'  Armstrong  v.  Toler,  11  Wheat.,  258;  Wilson  v.  Spencer,  i  Rand,  76;  Bow- 
man v.  Cunningham,  78  111.,  48. 

^  Dodson  V.  Swan,  2  W.  Va.,  511. 

°  Featherston  v.  Hutchinson,  Cro.  Eliz.,  199;  Schackell  v.  Rosier,  3  Scott,  59; 
Crawford  v.  Morrell,  8  Johns.,  253  ;  Donallen  v.  Leno.x,  6  Dana,  91 ;  Woodruff 
V.  Heniman,  1 1  Vt.,  592, 


28o  ILLEGALITY    OF    CONTRACT.  §§   212,   2 1 3. 

wise  where    the    consideration  is  legal,  and  some  of  the 
stipulations  only,  which  are  separable,  are  illegal.' 

§  212.  Validity  of  transaction  irrespective  of  the  agree- 
ment.— An  act  may  be  done,  which,  though  resulting  from 
an  illegal  contract,  is  a  valid  consideration  for  a  lawful 
agreement ;  as  the  transfer  of  stock,  the  agreement  to  do 
which  is  contrary  to  a  statute  against  stock-jobbing.* 
Where  a  trust  is  created  in  order  to  carry  out  an  agree- 
ment in  itself  incapable  of  being  enforced,  which  trust  is 
lawful  and  independent  of  the  contract,  except  so  far  as  the 
latter  may  be  necessary  to  explain  the  constitution  of  the 
trust,  the  trust  may  be  enforced,  and  thus  the  contract  be 
specifically  performed.  Accordingly,  where  two  persons 
entered  into  a  contract  for  the  division  of  an  estate  to  be 
recovered,  which  agreement  could  not  be  enforced  on  ac- 
count of  champerty,  and  he  who  was  to  convey  part  of  the 
estate  to  the  other,  by  a  codicil,  directed  the  contract  to  be 
carried  out,  and  created  a  trust  for  the  purpose,  specific  per- 
formance was  decreed  against  the  trustee."  And  a  trustee 
to  whom  money  is  paid  on  account  of  a  third  person,  can- 
not set  up  the  illegality  of  the  trust  under  which  the  money 
was  so  paid,  though  the  cestui  que  trust  could  not  have 
enforced  his  right  against  the  payer  directly,  as,  in  that 
case,  he  could  only  have  obtained  the  money  through  the 
illegal  agreement.' 

§  213.  Agreements  void  as  against  public  policy. — A 
contract  may  be  illegal  at  common  law,  as  against  public 
policy,  or  on  the  ground  that  it  is  immoral ;  or  it  may  have 
been  rendered  illegal  by  statute.  The  subject  is  too  ex- 
tensive to  admit  or  justify  anything  more  than  a  cursory 
treatment  here.  A  contract  void  as  against  public  policy 
in  which  the  parties  are  equally  at  fault,  if  still  executory, 
will  not  be  enforced,  nor  damages  be  awarded  for  its  breach  ; 

'  Leavitt  v.  Palmer,  3  N.  Y.,  19.  *  M'Callan  v.  Mortimer,  9  M.  &  W.,  636. 

'  Powell  V.  Knowler,  2  Atk.,  224. 

'  Thomson  v.  Thomson,  7  Yes.,  470 ;  Tenant  v.  Elliott,  i  B.  &  P.,  3.  See 
ante,  §  207. 


§213-       AGREEMENTS  VOID  AS  AGAINST  PUBLIC  POLICY.        28  I 

and,  if  the  contract  be  executed,  the  law  will  not  restore 
the  price  paid,  nor  the  property  delivered.'  A  contract  in- 
juriously affecting  the  revenue  of  the  country  cannot  be  en- 
forced ;'  and  the  same  is  true  of  an  agreement  in  general 
restraint  of  trade  ;'  but  not  if  the  restraint  is  only  partial." 
Agreements  whereby  parties  stipulate  not  to  bid  against 
each  other  at  a  public  auction,  especially  on  a  sale  of  chat- 
tels or  other  property  on  execution,  are  void  as  against 
public  policy.  And  so,  if  under-bidders  or  puffers  are  em- 
ployed at  an  auction  to  enhance  the  price  and  deceive  the 
bidders,  and  they  are  in  fact  misled.'  But  an  association  of 
individuals  may  be  formed  for  the  purpose  of  purchasing 
property  either  at  pubhc  or  private  sale  ;  this  being  nothing 
more  than  a  limited  partnership  for  a  special  object.*  The 
following  contracts  are  void  : — to  procure  the  passage  of  an 
act  of  the  Legislature  by  any  sinister  means,  or  by  using 

'  Setter  v.  Alvey,  15  Kansas,  157  ;  Marksbury  v.  Taylor,  10  Bush.,  519. 

""  Smith  V.  Mawhood,  14  M.  &  W.,  452  ;  Meux  v.  Humphries,  3  C.  &  P.,  79. 

'  Alger  V.  Thatcher,  19  Pick.,  51. 

*  Tallis  V.  Tallis,  18  Eng.  L.  &  Eq.,  151  ;  Pierce  v.  Woodward,  6  Pick.,  206  ; 
Chappel  V.  Brockway,  21  Wend.,  158  ;  Mott  v.  Mott,  11  Barb.,  127;  Hoagiand 
V.  Segar,  28  N.  J.,  230;  Dvvight  v.  Hamilton,  113  Mass.,  175  ;  Roller  v.  Ott,  14 
Kansas,  600;  Brown  v.  Rounsavell,  78  111.,  589;  Peltz  v.  Eichele,  62  Mo.,  171  ; 
Oregon  Steam  Navigation  Co.  v.  Winsor,  20  Wall,  64.  Although  it  is  the 
policy  of  the  law  not  to  permit  persons  to  be  placed  under  general  restraints  of 
trade,  even  by  their  own  acts  or  agreements,  yet  an  agreement  creating  only  a 
partial  or  particular  restraint,  is  valid,  if  entered  into  upon  a  good  and  adequate 
consideration.  In  Mitchel  v.  Reynolds,  i  P.  Wms.,  181,  Chief  Justice  Parker, 
afterward  Lord  Chancellor  Macclesfield,  held  that  a  bond  conditioned  not  to  ex- 
ercise a  certain  trade  within  a  particular  parish,  during  the  period  of  five  years, 
was  good  ;  it  appearing  by  the  recital  in  the  bond  that  tlie  obligor  had  assigned 
to  the  obligee  a  lease  of  the  premises  where  the  obligor  had  previously  carried  on 
the  business,  which  he  stipulated  not  to  follow  in  the  same  parish  within  a  given 
time.  In  Davis  v.  Mason,  5  Term.  R.,  118,  Lord  Kenyon  applied  the  same  prin- 
ciple to  a  bond  given  by  one  surgeon  to  another,  who,  in  consideration  of  being 
taken  into  business  with  the  obligee  as  assistant,  bound  himself  not  to  exercise 
his  professional  skill  and  business  on  his  own  account  within  the  distance  of  ten 
miles,  for  the  period  of  fourteen  years.  Chessman  v.  Nainby,  2  Stra.,  739 ;  i 
Bro.  P.  C,  234,  is  to  the  same  effect.  Courts  of  equity,  acting  upon  the  same 
principle,  give  effect  to  agreements  in  restraint  of  a  particular  trade  or  business 
when  the  same  are  founded  upon  a  sufficient  consideration  ;  and  a  specific  per- 
formance will  be  decreed.  Bryson  v.  Whitehead,  i  Sim.  &  Stu.,  74;  Noah  v. 
Webb,  I  Edw.  Ch.,  603. 

*  Jones  v.  Caswell,  3  Johns.  Cas.,  29  ;  Doolin  v.  Ward,  6  Johns.,  194  ;  Wilbur 
v.  How,  8  lb..  444;  Bartle  v.  Coleman,  4  Pet.,  184;  Craig  v.  State  of  Missouri, 
lb.,  436. 

'  Piatt  V.  Oliver,  2  McLean,  267. 


282  ILLEGALITY    OF    CONTRACT.  §213. 

personal  influence  with  the  members  ;'  but  not  an  agree- 
ment for  purely  professional  serv^ices  in  obtaining  the  pas- 
sage of  a  law — such  as  drafting  the  petition,  collecting  facts, 
attending  to  the  taking  of  testimony,  preparing  arguments, 
and  submitting  them  to  a  committee  or  other  proper 
authority  ;'  an  agreement  to  pay  for  procuring  a  contract 
from  the  government  to  furnish  its  supplies  ;'  to  resign  a 
pubHc  position  to  make  room  for  another  ;'  to  exchange 
offices  ;'  to  aid  another  in  obtaining  his  appointment  to 
office ;'  not  to  bid  for  the  labor  of  the  inmates  of  a  house 
of  correction  ;'  a  contract  to  procure  signatures  and  obtain 
the  pardon  from  the  governor  of  a  person  convicted  and 
sentenced  for  crime ;'  an  agreement  by  a  railroad  company 
not  to  have  or  use  a  depot  within  a  specified  distance  of  a 
certain  place  ;'  to  pay  the  directors  or  other  agents  of  a 
railroad  company,  in  money  or  land,  on  condition  the  road 
is  located  on  a  certain  route,  or  that  a  depot  is  established 
at  a  particular  place  ;'°  a  combination  among  parties  apply- 
ing for  a  street  improvement,  by  which  a  few  individuals, 
anxious  to  have  grading  and  paving  done,  procure  the  ac- 
quiescence of  others  by  paying  them  therefor."  An  agree- 
ment to  waive  a  right  in  contravention  of  State  policy  can- 

'  Marshall  v.  Bait.  &  Ohio  R.R.  Co.,  16  How.,  314;  Clippinger  v.  Hepbaugh, 
5  Watts  &  Serg.,  315;  Harris  v.  Roof,  10  Barb.,  489;  Rose  v.  Truax,  21  lb., 
361  ;  Usher  v.  McBratney,  3  Dillon,  385. 

=*  Trist  V.  Child,  21  Wall,  441.  ^  Tool  Co.  v.  Norris,  2  Wall,  45. 

*  Parsons  v.  Thompson,  i  H.  Bl.,  322  ;  Eddy  v.  Capron,  4  R.  L,  395. 

"  Stroud  V.  Smith,  4  Houst.  Del.,  448  «  Gray  v.  Hook,  4  N.  Y.,  449. 

'  Gibbs  V.  Smith,  115  Mass.,  592.  '  Hatzfield  v.  Gulden,  7  Watts,  152. 

°  St.  Joseph,  etc.,  R.R.  Co.  v.  Ryan,  11  Kansas,  602. 

'°  Fuller  V.  Dame,  18  Pick.,  .^7?  ;  Pacific  R.R.  Co.  v.  Seely,  45  Mo.,  212. 

"  Maguire  v.  Smock,  42  Ind.,  i  ;  Howard  v.  First  Independent  Church  of  Bal- 
timore, 18  Md.,  451.  Agreements  to  pay  money  in  aid  of  the  erection  of  public 
buildings,  on  condition  that  they  be  erected  at  a  certain  place,  or  be  not  removed 
therefrom,  have  been  sustained.  Carpenter  v.  Mather,  3  Scam.,  374  ;  State 
Treasurer  v.  Cross,  9  Vt.,  289;  Bull  v.  Talcot,  2  Root,  119;  Commrs.  of  Canal 
Fund  v.  Periy,  5  Ohio,  56;  Caldwell  v.  Harrison,  11  Ala.,  755  ;  University  of  Vt, 
V.  Buell,  2  Vt.,  48  ;  Religious  Soc.  v.  Stone,  7  Johns.,  112  ;  M'Auley  v.  Billenger, 
20  lb.,  89;  Collier  v.  Baptist  Education  Soc,  8  B.  Mon.,  68;  Trustees  of  Am- 
herst Academy  v.  Cowls,  6  Pick.,  427;  Williams  College  v.  Danforth,  12  Pick., 
541  ;  George  v.  Harris,  4  N.  H.,  533;  Odineal  v.  Barry,  24  Miss.,  i  ;  State  v. 
Johnson,  52  Ind.,  197  ;  contra,  Commrs.  v.  Jones,  Breese,  237  ;  Stilson  v.  Commrs. 
of  Lawrence  Co.,  52  Ind.,  213. 


§   2  13-      AGREEMENTS  VOID  AS  AGAINST  PUBLIC  POLICY.         283 

not  be  enforced.'  Contracts  in  restraint  of  marriage  are 
void  as  being  opposed  to  the  general  interests  of  society ;' 
but  not  conditions  annexed  to  gifts,  legacies,  and  devises, 
in  reasonable  restraint  of  marriage."  A  wagering  contract 
that  the  plaintiff  would  not  marry  within  a  given  time,  is 
prima  facie  in  restraint  of  marriage,  and  void  at  common 
law.*  So,  a  marriage  brokerage  contract  by  which  a  party 
engages  to  reward  another  if  he  will  negotiate  an  advantage- 
ous marriage  for  him  is  void,"  as  is  also  on  the  same  princi- 

*  Branch  v.  Tomlinson,  TJ  N.  C,  388. 

"^  Lowe  V.  Peers,  4  Burr,  2225  ;  Baker  v.  While,  2  Vern.,  215  ;  Wooclhouse  v. 
Shepley,  2  Atk.,  535  ;  Cock  v.  Richards,  10  Yes.,  429;  Ph. Hips  v.  jNIedbun,-,  7 
Conn.,  568  ;  Conrad  v.  Williams,  6  Hill,  444 ;  England  v.  Downs,  i  Beav.,  96. 

^  Story's  Eq.  Juris.,  Sec.  280.  An  injunction  not  to  ask  consent,  is  lawful,  as 
not  restraining  marriage  generally.  A  condition  that  a  widow  shall  not  marry, 
is  not  unlawful ;  nor  an  annuity  during  widowhood.  A  condition  to  marr}%  or 
not  to  marry,  Titius,  is  good.  And  the  same  is  true  of  a  condition  prescribing 
due  ceremonies  and  a  place  of  marriage.  Still  more,  is  a  condition  good,  which 
only  limits  the  time  to  twenty-one,  or  any  other  reasonable  age,  provided  it  be 
not  used  evasively  to  restrain  marriage  generally.  Scott  v.  Tyler,  2  Bro.  C.  C, 
488,  per  Lord  Thurlow,  Ch.  Restraints  upon  marriage  in  respect  to  time,  place, 
and  person,  to  be  valid,  must  be  imposed  with  proper  limitations.  They  may  be 
so  framed,  as  virtually  to  prohibit  marriage.  As,  for  instance,  "  a  condition  that 
a  child  should  not  marry  until  fifty  years  of  age  ;  or  should  not  marry  any  person 
living  in  the  same  town,  county,  or  State  ;  or  should  not  marry  any  person  who 
was  a  clergy^man,  a  physician,  or  a  lawyer,  or  any  person  except  of  a  particular 
trade  or  employment ;  for  these  would  be  deemed  a  mere  evasion  or  fraud  upon 
the  law."  Story's  Eq.  Juris.,  Sec.  283.  "  Courts  of  equity  are  not  generally  in- 
clined to  lend  an  indulgent  consideration  to  conditions  in  restraint  of  marriage  ; 
and,  on  that  account,  they  have  not  only  constantly  manifested  an  anxious  desire 
to  guard  against  any  abuse  to  which  the  giving  of  one  person  any  degree  of  con- 
trol over  another  might  eventually  lead,  but  they  have  on  many  occasions 
resorted  to  subtleties  and  artificial  distirxtions,  in  order  to  escape  the  positive 
directions  of  the  party  imposing  such  conditions."     lb  ,  Sec.  286. 

■*  Hartley  V.  Rice,  10  East.,  22;  Sterling  v.  Sinnickson,  2  South,  756;  Eldred 
V.  Mallory,  2  Col.  T.,  320;  Young  ex  parte,  6  Biss.,  53. 

^  Roberts  v-  Roberts,  3  P.  Wms.,  74;  Drury  v.  Hooke,  i  Vern.,  412  ;  Hall  v. 
Potter,  3  Lev.,  411  ;  Cole  v.  Gibson,  i  Ves.,  507  ;  Smith  v.  Aykwell,  3  Atk.,  566. 
"  Marriage  brokerage  bonds  which  are  not  fraudulent  on  either  party,  are  yet 
void,  because  they  are  a  fraud  on  third  persons,  and  are  a  public  mischief,  as 
they  have  a  tendency  to  cause  matrimony  to  be  contracted  on  mistaken  princi- 
ples and  without  the  advice  of  friends  ;  and  they  are  relieved  against  as  a  gen- 
eral mischief,  for  the  sake  of  the  public.  Upon  this  principle,  bargains  to  pro- 
cure offices  are  rescinded,  not  on  account  of  fraud  on  either  of  the  parties,  but 
for  the  sake  of  the  public,  because  they  tend  to  introduce  unsuitable  persons  into 
public  offices.  Another  case,  where  the  deceit  is  upon  persons  not  parties  to  the 
contract,  is  a  deceit  on  a  father,  or  other  relation,  to  whom  the  affairs  of  an  heir, 
or  expectant,  are  not  disclosed,  so  that  they  are  influenced  to  leave  their  fortunes 
to  be  divided  amongst  a  set  of  dangerous  persons  and  common  adventurers  in 
fact,  though  not  in  form.  This  deceit  is  relieved  against  as  a  public  mischief, 
destructive  of  all  well-regulated  authority  or  control  of  persons  over  their  chil- 
dren, or  others  having  expectations  from  them,  and  as  encouraging  extravagance, 


284  ILLEGALITY    OF    CONTRACT.  §214. 

pie,  a  bond  orivcn  to  another  in  consideration  of  his  having 
assisted  the  oblic^or  in  an  elopement  and  marriajre  without 
the  consent  of  friends  ;'  or  an  agreement  providing  for  a 
contingent  or  future  separation  between  husband  and  wife." 
A  parol  contract  concerning  the  purchase  and  conveyance 
of  lands  belonging  to  the  United  States,  made  in  violation 
of  the  spirit  of  the  laws  of  the  United  States,  and  in  fraud 
of  the  same,  cannot  be  enforced  specifically  or  otherwise  ; 
and  no  trust  estate  in  the  lands  will  result  in  favor  of  the 
plaintiff  which  can  be  declared  by  a  court  of  equity/  The 
contracts  of  a  public  enemy  are  in  general  illegal,  as  being 
injurious  to  the  public  welfare,  and  incapable  of  being  en- 
forced either  by  him  or  by  any  person  for  his  benefit.* 

§  214.  Immoral  consideration. — Contracts  are  illegal  at 
common  law  the  consideration  of  which  is  to  do  some  im- 
moral act,  as  future  illicit  cohabitation,  or  for  the  commis- 
sion of  crime,  or  the  violation  of  law,  or  the  omission  of  a 


prodigality,  and  vice.  A  case  in  which  an  heir  or  expectant  is  frequently  re- 
lieved against  his  contract,  is  a.  post  obit  bond.  This  is  an  agreement,  on  the 
receipt  of  a  sum  of  money,  by  the  obligor,  to  pay  a  larger  sum  exceeding  the 
legal  rate  of  interest,  on  the  death  of  the  person  from  whom  he  has  some  expecta- 
tion, if  the  obligor  be  then  living.  The  contract  is  not  considered  a  nullity,  but 
it  maybe  made  on  reasonable  terms  in  which  the  stipulated  payment  is  not  more 
than  a  just  indemnity  for  the  hazard.  But  whenever  an  advantage  is  taken  of 
the  necessity  of  the  obligor,  to  induce  him  to  make  this  contract,  he  is  relieved, 
as  against  an  unconscionable  bargain,  on  payment  of  the  principal  and  interest. 
Another  case  in  which  an  heir  is  relieved,  is  when  he  is  entitled  to  an  estate  in 
reversion  or  remainder  expectant  on  the  death  of  some  ancestor  or  relative,  and 
he  contracts  to  sell  the  same  for  ready  money.  All  these  cases  are  not  relieved 
against  as  fraudulent,  because  a  reasonable  and  sufficient  consideration  may  be 
paid,  as  ascertained  by  the  annual  value  of  the  estate,  and  of  the  intervening  life. 
But,  as  in  post  obit  contracts,  when  an  advantage  is  taken  by  the  purchaser  of 
the  necessity  of  the  seller,  he  will  be  relieved  against  the  sale,  on  repaying  the 
principal  and  interest,  and  sometimes  paying  for  reasonable  repairs  made  by  the 
purchaser."     Parsons,  C.  J.,  in  Boynton  v.  Hubbard,  7  Mass.,  112. 

'  Williamson  v.  Gihon,  2  Sch.  &  Lef.,  356,  362. 

"  But  not  where  an  instrument  provides  for  an  immediate  separation.  Jones 
V.  Waite,  7  Scott,  317.  See  Moore  v.  Usher,  7  Sim.,  384;  Gibson  v.  Dickie,  3 
M.  &  S.,  463. 

^  Brake  v.  Ballou,  19  Kansas,  397.  A  contract  for  the  purchase  of  land  in  con- 
travention of  the  policy  of  a  statute,  will  not  be  specifically  enforced,  notwith- 
standing the  payment  of  the  purchase  money,  possession  under  the  contract,  and 
the  making  of  valuable  improvements.     Smith  v.  Johnson,  37  Ala.,  633. 

*  Brandon  v.  Nesbitt,  6  Term  R.,  23  ;  Albretcht  v.  Sussmann,  2  V.  &  B.,  323. 
See  Musson  v.  Fales,  16  Mass.,  334. 


§215-  AGREEMENTS    FORBIDDEN    BY    STATUTE.  285 

public  duty  thereafter  to  be  performed  ;'  or  a  promise,  not 
under  seal,  in  consideration  of  past  seduction  or  illicit  in- 
tercourse \  but  not  a  specialty  founded  on  such  a  considera- 
tion.' Within  the  same  rule,  a  contract  for  the  printing  or 
sale  of  a  libelous  or  immoral  book  or  picture,  would  be  void.' 
§  215.  Agreements  forbidden  by  statute.  —  A  contract 
founded  on  a  transaction  prohibited  by  law,  is  void."  Some 
of  the  contracts  which  are  illegal  at  common  law,  are  also 
prohibited  by  statute.  It  was  formerly  considered  that 
there  was  a  difference  between  a  deed  or  condition  void  in 
part  by  statute,  and  one  void  in  part  at  common  law,  and 
that  if  any  of  several  independent  stipulations  in  an  agree- 
ment were  prohibited  by  statute,  the  whole  contract  was 
void.  But  such  a  distinction  cannot  be  sustained  on  prin- 
ciple, and  it  is  no  longer  regarded.'  Again,  it  was  laid 
down  in  some  of  the  older  cases,  that  where  the  transac- 
tion in  relation  to  which  a  contract  was  entered  into  was 
not  expressly  prohibited,  but  only  forbidden  under  a 
penalty,  the  contract  would  nevertheless  stand,  payment  of 
the  penalty  atoning  for  a  violation  of  the  statute.'  It  is 
now,  however,  well  settled  that  a  penalty  in  a  statute  im- 
ports a  prohibition,  though  there  are  no  prohibitory  words." 

'  Walker  v.  Perkins,  3  Burr,  1568  ;  i  W.  Blk.,  517  ;  Robinson  v.  Cox,  9  Mod., 
263  ;  Trovinger  V.  McBurney,  5  Cowen,  253^  But  not  an  agreement  to  indemnify 
an  officer  for  previous  neglect  of  duty.     Hall  v.  Huntoon,  17  Vt.,  244. 

-  Beaumont  v.  Reeve,  8  Q.  B.,  483.  But  see  Binnington  v.  Wallis,  4  B.  & 
Aid.,  650,  652  ;  Gibson  v.  Dickie,  3  M.  &  S.,  463  ;  Jennings  v.  Brown,  9  M.  & 
W.,  496. 

''  Nye  V.  Moseley,  6  B.  &  C,  133;  Knye  v.  Moore,  i  Sim.  &  Stu.,  61 .  See  Cusack 
V.  White,  2  Const.  Ct.,  285;  Shenk  v.  Mingle,  13  Serg.  &  Rawle,  29;  Hall  v. 
Palmer,  3  Hare,  532  ;  Friend  v.  Harrison,  2  C.  &  P.,  584. 

*  Fores  v.  Johnes,  4  Esp.,  97  ;  Poplett  v.  Stockdale,  R.  &  M.,  337. 
^  Tucker  v.  West,  29  Ark.,  386. 

*  Norton  v.  Simmes,  Hob.,  14  ;  Morgan  v.  Horseman,  3  Taunt.,  244  ;  Malev- 
erer  v.  Redshaw,  i  Mod.,  35  ;  Mosdel  v.  Middleton,  i  Vent.,  237  ;  Collins  v. 
Blantern,  2  Wils.,  351  ;  Newman  v.  Newman,  4  M.  &  S.,  70;  Howe  v.  Synge, 
15  East.,  440;  Doe  v.  Pitcher,  6  Taunt.,  369 ;  Biddell  v.  Leader,  i  B.  &  C,  327  ; 
Leavitt  v.  Blatchford,  5  Barb.,  9. 

'  Comyns  v.  Boyer,  Cro.  Eliz.,  485;  Gremare  v.  Le  Clerc  Bois  Valon,  2 
Camp.,  144. 

"Bartlett  v.  Vinor,  Carth.,  252;  Little  v.  Poole,  9  B.  &  C,  192;  Cannan  v. 
Bryce,  3  B.  &  Aid.,  179;  De  Begnis  v.  Armistead,  10  Bing.,  107;  Foster  v. 
Taylor,  5  B.  &  Ad.,  896  ;  Fergusson  v.  Norman,  6  Scott,  794  ;  Mitchell  v.  Smith, 


286  ILLEGALITY  OF  CONTRACT.     §§  2 1 6,  2 1 7. 

§  216.  Contracts  affected  with  iisitry. — Agreements 
affected  with  usury  cannot  be  specifically  enforced.'  A 
contract  is  usurious  which  reserves  the  principal  with  legal 
interest,  and  also  a  contingent  benefit,  without  exposing 
the  money  loaned  to  risk.'  It  is  unlawful  for  a  lender  of 
money  to  stipulate  for  advantages  beyond  the  rate  of  in- 
terest allowed  by  law,  and  all  stipulations  for  a  collateral 
matter  which  may  by  possibility  lead  to  a  benefit,  though 
not  in  themselves  usurious,  arc  illegal  as  tending  to  usury.' 
If  a  lender  file  a  bill  in  equity  for  the  enforcement  of  a 
contract  void  by  the  statute  against  usury,  the  court  will 
refuse  all  assistance  and  set  aside  any  security  and  instru- 
ment infected  with  usury.'  So,  a  plaintiff  who  seeks  the 
aid  of  a  court  of  equity  against  an  usurious  contract,  will 
not  be  relieved  except  upon  the  terms  of  paying  to  the  de- 
fendant what  is  bona  fide  due  him ;  and  if  the  plaintiff  do 
not  offer  to  do  so  in  his  bill,  the  bill  will  be  demurrable  on 
that  ground.' 

§  2 1 7.  Wagering  and  other  illegal  agreements.  —  A 
w^ager  has  been  defined  to  be  "  a  contract  in  w^hich  the 
parties  stipulate  that  they  shall  gain  or  lose  upon  the  hap- 
pening of  an  uncertain  event  in  which  they  have  no  inter- 
est except  that  arising  from  the  possibility  of  such  gain  or 
loss."°  Gaming  and  wagering  contracts,  though  in  general 
lawful  at  common  law^'  are  made  illegal  by  statute  ;  and  a 
bill  in  equity  will  lie  to  have  a  gaming  security  delivered 


4  Dall.,  269;  Pray  v.  Burbank,  10  N.  H.,  377  ;  Sharp  v.  Teese,  4  Halst.,  352; 
Seidenbender  V.  Charles,  4  Serg.  &  Rawle,  159;  Harris  v.  Runnels,  12  How., 
80;  Coombs  V.  Emerj',  14  Me.,  404;  Territt  v.  Bartlett,  21  Vt,  184;  White  v. 
Bass,  3  Cush.,  449. 

'  Belcher  v.  Vardon,  2  Coll.,  173;  post,  §  332. 

''Barnard  v.  Young,  17  Ves.,  44;  Powney  v.  Blomberg,  14  Sim.,  182. 

3  Leith  V.  Irvine,  i  NL  &  K.,  282. 

*  I  Fonbl.  Eq.,  B.  i,  Ch.  i,  Sec.  3,  note  H  ;  Scott  v.  Nesbit,  2  Bro.  C.  C„  641  ; 
Eagleson  v.  Shotwell,  i  Johns.  Ch.,  536;  Fanning  v.  Dunham,  5  lb.,  122. 

^Story's  Eq.  Juris,  Sec.  301;  Benfield  v.  Solomons,  9  Ves.,  84  ;  Rogers  v. 
Rathbun,  i  Johns.  Ch.,  367;  Ballinger  v.  Edwards,  4  Ired.  Eq.,  449;  Beard  v. 
Bingham,  76  N.  C,  285  ;  post,  §  332. 

« Hare,  P.  J.,  Fareira  v.  Gabell,  89  Pa.  St.,  90.  '  Chitty  on  Contr.,  615. 


§   217.      WAGERING    AND    OTHER    ILLEGAL    AGREEMENTS.       287 

up  to  be  cancelled.'  Where  part  of  the  consideration  is 
money  lost  and  won  at  gaming,  the  whole  contract  is  void.' 
Equity  will  enjoin  a  judgment  founded  on  a  gaming  debt, 
though  the  party  has  failed  to  defend  himself  at  law,  and 
gives  no  good  reason  for  such  failure.'  Contracts  which 
tend  to  promote  champerty  and  maintenance,  are  illegal  at 
common  law,  and  by  statute.'  And  the  same  is  true  of 
agreements  to  embarrass  a  prosecution  for  a  criminal 
offence,  by  destroying  or  withholding  evidence,  or  other 
acts  of  that  character."  In  such  cases,  the  parties  take  the 
responsibility  of  interfering  with,  and  by  secret  or  indirect 
means,  frustrating  the  administration  of  justice.  But  an 
agreement  to  lay  the  whole  facts  before  the  court,  and  to 
leave  it  to  the  free  exercise  of  the  discretionary  powers 
vested  in  it  by  law,  is  not  in  itself  wrong,  and  is  not 
rendered  illegal  even  by  a  stipulation,  on  the  part  of  a 
prosecutor,  to  exert  such  legitimate  influence  as  his  position 
gives  him  in  favor  of  the  extension  of  mercy  to  a  guilty 
party."     To  avoid  an  obligation  on  the  ground  that  it  was 


'  Rawden  v.  Shaclwell,  Ambler,  269;  Woodroffe  v.  Farnham,  2  Vern.,  291  ; 
Osbaldiston  v.  Simpson,  13  Sim.,  513  ;  Hasket  v.  Wootan,  i  Nott  &  McCord, 
180;  Wood  V.  Wood,  2  Murphy,  172;  Forrest  v.  Hunt,  lb.,  458;  Martin  v. 
Terrell,  12  Sm.  &  Marsh,  571  ;  coiitra,  Cowles  v.  Raguet,  14  Ohio,  55. 

^  Reed  v.  Reeve,  13  Bush.  Ky.,  44.7. 

^Woodson  V.  Barrett,  2  Hen.  &  Munf.,  80;  Skipvvith  v.  Strother,  3  Rand., 
214;  Hoomes  v.  Smock,  i  Wash.,  391  ;  Dade  v.  Madiscn,  5  Leigh.,  401. 

"  Powler  V.  Knowler,  2  Atk.,  224,        ^  Kimbrough  v.  Lane,  11  Bush.  Ky.,  550. 

'  Nickleson  v.  Wilson,  60  N.  Y.,  362,  reversing  S.  C,  i  Hun.,  615  ;  4  Thomp. 
&  Cook,  104.  In  Pollak  v,  Gregory,  9  Bosw.,  116,  it  was  held  that  an  agree- 
ment to  pay  a  witness  for  testifying,  on  condition  that  his  evidence  should  lead 
to  a  result  favorable  to  the  party  calling  him,  was  illegal  and  void.  "  But  the 
evil  of  such  an  agreement  consists  in  the  condition  which  holds  out  to  the  wit- 
ness the  temptation  of  falsifying  his  testimony,  so  as  to  produce  the  result  upon 
which  his  compensation  is  to  depend.  Where  the  witness  simply  consents  to 
make  a  disclosure  of  the  truth,  and  he  has  no  inducement  to  produce  any 
special  result,  the  mischief  is  not  apparent.  In  Yeatman  v.  Dempsey,  7  C.  B. 
N.  S.,  628,  an  agreement  to  testify,  divested  of  such  a  condition,  was  sustained  ; 
and  also  m  Webb  v.  Page,  i  Carr.  &  Kir.,  23,  in  the  case  of  an  expert."  Ra- 
pallo,  J.,  in  Nickleson  v.  Wilson,  supra.  This  case  was  as  tbllows :  An  indict- 
ment had  been  found  against  A.  and  B.,  for  obtaining,  by  false  pretences,  the 
notes  of  C,  in  the  sum  of  six  thousand  dollars  ;  and  an  action  had  also  been 
brought  against  them  by  C.  to  recover  the  amount  of  the  notes.  B.  afterward 
commenced  proceedings  in  bankruptcy  against  C,  and  evidence  was  taken  there- 
in.    A.  and  C.  directed  their  respective  counsel  to  make  any  agreement  they 


288  ILLEGALITY    OF    CONTRACT.  §   2  I  7. 

given  for  compounding  a  felony,  it  must  appear  that  the 
compounding  of  the  felony  was  the  consideration  of  the 
obligation.  Where  the  consideration  of  a  mortgage  is  a 
bona  fide  debt,  and  it  was  the  duty  of  the  debtor  under  the 
circumstances  to  pay  or  secure  the  debt,  a  threat  of  a 
criminal  prosecution  unless  the  mortgage  is  given,  does  not 
compound  the  offence.' 

deemed  for  the  interest  of  their  clients  in  the  pending  prosecution  ;  and  C.'s 
counsel,  who  was  the  district  attorney,  agreed  with  the  counsel  of  A.  that  A. 
should  testify  to  all  he  knew,  in  the  several  proceedings,  and  if  a  verdict  was 
not  rendered  against  B.  in  the  civil  action,  none  should  be  obtained  against  A.  ; 
that  if  judgment  were  obtained  against  A.  and  B.,  it  should  only  be  enforced 
against  A.  to  the  extent  of  one  thousand  dollars,  and  be  paid  in  one  of  C.'s 
notes;  that  A.  should  have  control  of  the  judgment  against  B.  for  whatever 
sum  he  was  obliged  to  account  for  to  C.  ;  and  that,  if  A.  testified  fully,  the  dis- 
trict attorney  would  recommend  that  a  nolle  prosequi  be  entered  in  his  behalf. 
All  of  the  foregoing  details  were  not  communicated  to  A.  and  C. ;  but  A.,  act- 
ing under  the  instructions  of  his  counsel,  fulfilled  the  agreement  on  his  part. 
In  a  suit  for  specific  performance  brought  by  A.,  the  complaint  having  been  dis- 
missed in  the  court  below,  on  the  ground  that  the  agreement  was  against  public 
policy,  and  void,  this  judgment  was  reversed  by  the  court  of  appeals,  and  a  new 
trial  ordered. 

'  Plant  V.  Gunn,  2  Woods,  372.  It  is  no  defence  to  an  action  brought  to  re- 
cover the  price  of  goods  sold,  that  the  vendor  knew  that  they  were  bought  for 
an  illegal  purpose,  provided  it  is  not  made  a  part  of  the  contract  that  they 
shall  be  used  for  that  purpose ;  and  provided  also,  the  vendor  has  done  nothing 
in  aid  or  furtherance  of  the  unlawful  design.  Holman  v.  Johnson,  Cowp.,  341  ; 
Faikney  v.  Reynous,  4  Burr.,  2069;  Pellecat  v.  Angell,  2  C.  M.  &  R.,  311  ; 
Hodgson  V.  Temple,  5  Taunt.,  181  ;  Merchant's  Bank  v.  Spalding,  12  Barb., 
302;  Armstrong  v.  Toler,  11  Wheat.,  258;  Tracy  v.  Talmage,  14  N.  Y.,  162; 
McKinney  v.  Andrews,  41  Texas,  363.  Contra,  Langton  v.  Hughes,  i  Maule 
&  Sel.,  593.  The  case  of  De  Groot  v.  Vanduzer,  20  Wend.,  390,  before  the 
New  York  court  for  the  correction  of  errors,  was  decided  upon  the  principle 
that  where  the  intention  of  one  of  the  parties  to  the  contract  is  to  enable  the 
other  party  to  violate  the  law  of  the  State,  the  contract  is  void  ;  and  that  no 
action  can  be  sustained  by  either  party  founded  on  such  a  contract.  "There 
are  undoubtedly  many  conflicting  decisions  upon  the  question  how  far  the  ven- 
dor of  an  article  is  chargeable  with  a  participation  in  the  illegal  purpose  for 
which  it  is  intended  to  be  used,  from  a  mere  knowledge  of  the  fact  that  the  pur- 
chaser intends  so  to  use  it.  The  case  of  the  druggist  who  sold  drugs  to  a 
brewer,  knowing  that  he  intended  to  use  them  in  brewing,  contrary  to  the 
statute,  is  a  very  strong  case  in  favor  of  extending  the  principle  to  a  collateral 
contract  which  had  no  necessary  connection  with  the  violation  of  the  law. 
That  case  shows,  too,  that  where  the  agreement  is  made  for  the  purpose  of 
aiding  the  violation  of  the  law,  it  is  not  necessary  to  aver  and  prove  that  the  of- 
fence was  in  fact  consummated  by  an  actual  violation  subsequent  to  the  agree- 
ment, which  agreement  is  void  from  the  beginning.  Langton  v.  Hughes,  i 
Maul.  &  Sel.,  593.  If  a  trader  agrees  to  furnish  a  robber  with  arms  and  am- 
munition for  the  purpose  of  carrying  on  his  business  of  highwayman,  it  cannot 
be  a  valid  answer  to  the  illegality  of  the  contract,  that  the  arms  and  ammunition 
sold  to  him  for  that  purpose,  were  not  in  fact  used  in  the  prosecution  of  the 
illegal  object  originally  intended  at  the  time  of  the  purchase.  The  illegality  of 
the  contract  consists  in  the  intention  to  aid  in  a  violation  of  the  law,  or  of  a 
principle  of  public  policy,  or  to  commit  a  breach  of  good  morals,  and  not  in  the 


§   2l8.  FIDUCIARY    RELATIONS    OF    PARTIES.  289 

§  2 1 8.  Where  the  parties  sustain  Jiduciary  relations  to- 
ward each  other. — Contracts  not  strictly  illegal  may,  under 
the  circumstances,  be  regarded  with  suspicion  by  the  court, 
and  be  deemed  unlawful  as  opposed  to  general  public 
policy,  in  consequence  of  the  peculiar  relation  sustained  by 
the  parties  toward  each  other,  affording  a  temptation  and 
an  opportunity  for  unconscionable  advantage.  Of  this 
nature  are  contracts  between  parent  and  child,  attorney  and 
client,  physician  and  patient,  guardian  and  ward,  trustee 
and  cestui  que  trust,  and  principal  and  agent  or  surety. 
This  class  of  cases  forms  an  exception  to  the  rule,  pre- 
viously adverted  to,  that  the  defence  of  illegality  is  not  al- 
lowed out  of  concern  for  the  individual  interests  of  the 
party  interposing  it ;  one  of  the  grounds  of  the  jurisdiction 
being  the  protection  of  persons  against  the  effects  of  over- 
weening confidence  and  precipitate  judgment.'     A  court  of 


actual  consummation  of  the  offence.  These  cases  in  which  an  independent 
contract  has  been  held  void  from  a  mere  knowledge  of  the  fact  of  the  illegal 
end  in  view,  proceed  upon  the  ground  that  the  party  having  such  knowledge, 
intended  to  aid  the  illegal  object  at  the  time  he  made  the  contract  ;  and  when- 
ever, therefore,  that  intention  is  shown,  no  doubt  can  exist  as  to  the  propriety 
of  applying  the  rule  that  no  action  or  claim  can  be  sustained  in  a  court  of  jus- 
tice founded  upon  such  contract."     lb.,  per  Walworth,  Ch. 

'  Goddard  v.  Carlisle,  9  Price,  169 ;  Fox  v.  Mackreth,  2  Bro.  C.  C,  407  ;  Baker 
V.  Bradley,  35  Eng.  L.  &  Eq.,  449  ;  Walmesley  v.  Booth,  2  Atk.,  25  ;  Edvv^ards 
V.  Meyrick,  2  Hare,  60  ;  Billing  v.  Southee,  10  Eng.  L.  &  Eq.,  37  ;  Dent  v.  Ben- 
nett, 4  M.  &  C,  269 ;  Dawson  v.  Massey,  i  B.  &  B.,  226  ;  Hylton  v.  Hylton,  2 
Ves.,  548  ;  Hatch  v.  Hatch,  9  lb.,  292  ;  Cecil  v.  Plaistow,  [  Anst.,  202  ;  Taylor 
v.  Taylor,  8  Hpw.,  200;  Jenkins  v.  Pye,  12  Pet.,  241  ;  Slocum  v.  Marshall,  2 
Wash.  C.  C,  397;  Whelan  v.  Whelan,  3  Cowen,  537;  Boney  v.  Holingsworth, 
23  Ala.,  698  ;  Sears  v.  Shafer,  2  Seld.,  268  ;  Hewitt  v.  Crane,  2  Halst.  Ch.,  159  ; 
Howell  V.  Ransom,  11  Paige  Ch.,  538;  Evans  v.  Ellis,  5  Denio,  640;  Voorhees 
v.  Presbyterian  Church,  8  Barb.,  136;  Blackmore  v.  Shelby,  8  Hum[)h.,  439  ; 
Dobson  V.  Racey,  3  Sandf,  61  ;  Pratt  v.  Thornton,  28  Me.,  335  ;  Van  Epps  v. 
Van  Epps,  9  Paige  Ch.,  207  ;  •Farnam  v.  Brooks,  9  Pick.,  212  ;  King  v.  Baldwin, 
2  Johns.  Ch.,  554;  Bank  of  U.  S.  v.  Etting,  11  Wheat.,  59.  "The  principle 
which  affects  dealings  between  trustee  and  cestui  que  /riist,  is  not  confined  to 
trustees  properly  so  called,  but  extends  to  other  persons  invested  with  a  like 
fiduciary  character:  such  as  executors  and  administrators,  assignees  of  a  bank- 
rupt, commissioners  of  bankrupts,  and  other  judicial  officers;  committees  of 
lunatics,  governors  of  a  charity,  receivers,  directors  of  a  railway  or  other  com- 
pany, arbitrators,  a  member  of  a  corporation  taking  a  lease  of  the  corporate 
property,  and  many  other  cases.  The  disability  extends  in  general  to  all  per- 
sons who,  being  employed  or  concerned  in  the  affairs  of  another,  acquire  a 
knowledge  of  his  property.  Partners  in  business  of  an  assignee  in  bankruptcy 
are  equally  disqualified  from  purchasing  as  the  assignee  liimself."  Kerr  on 
Fraud  and  Mistake,  161,  162. 

19 


290  ILLEGALITY    OF    CONTRACT.  §   2l8. 

equity  will  closely  scrutinize  a  transaction  where  fiduciary 
and  confidential  relations  exist  between  the  parties,  and 
will  refuse  to  decree  the  specific  performance  of  a  contract 
entered  into  for  the  plaintiff's  own  benefit  when  there  is 
reason  to  suppose  that  advantage  was  taken  by  him  of  the 
defendant's  situation  to  obtain  an  improper  advantage.' 
Persons  stand  in  some  sort  under  the  protection  of  the  law, 
who,  from  their  youth,  advanced  age,  or  character,  are  pre- 
sumed to  be  incapable  of  taking  care  of  their  own  in- 
terests. "  Contracts  of  seamen  respecting  their  wages  are 
watched  with  great  jealousy,  and  are  generally  relievable 
whenever  any  inequality  appears  in  the  bargain,  or  any 
undue  advantage  has  been  taken."  °  On  the  same  princi- 
ple, persons  dealing  with  heirs,  reversioners,  and  expect- 
ants, during  the  life  of  their  parents  or  other  ancestors,  are 
required  to  show  that  a  fair  and  adequate  consideration  has 
been  paid.'  Although  courts  view  with  jealousy  and  sus- 
picion any  dealing  between  a  mortgagor  and  mortgagee  to 
extinguish  the  equity  of  redemption,  yet  if  a  fresh  contract 
be  made  between  them  by  which  the  mortgagee  acquires  an 
absolute  ownership  by  purchase,  and  the  transaction  is.  fair 
and  honest,  the  purchaser  will  not  be  disturbed." 

1  Flanagan  v.  Gt.  Western  R.R.  Co.,  L.  R.  7,  Eq.  116. 

'  I  Story's  Eq.  Juris.,  Sec.  132.  '  Ante,  §  178. 

*  Remsen  v.  Hay,  2  Edw.  Ch.,  535  ;  Wilson  v.  Carpenter,  62  Ind.,  495. 


CHAPTER  VIII. 

CONTRACT    ULTRA    VIRES. 

219.  Nature  of  defence. 

220.  Construction  and  extent  of  powers  of  corporat'tons. 

221.  Distinction  between  purpose  not  authorized,  and  unauthorized  means  of 

effecting  an  authorized  purpose. 

222.  Power  of  corporation  presumed. 

223.  Unauthorized  contract  of  corporation  incapable  of  enforcement. 

224.  Contracts  of  corporations  imphedly  prohibited. 

225.  Contract  of  corporation  ultra  vires  as  to  stockholders,  not  necessarily  so 

as  to  other  party. 

226.  Effect  of  performance  of  contract. 

227.  Recovery  of  consideration  paid. 

§  219.  Meaning  and  application  of  defetice. — The  de- 
fence now  to  be  considered  relates  exclusively  to  suits 
brought  to  enforce  contracts  entered  into  by  corporations, 
which,  being  artificial  bodies  created  by  statute,  can  make 
no  valid  contract  not  within  the  powers  conferred  upon 
them.  Strictly  speaking,  an  act  is  ultra  "ui^^es  when  its  per- 
formance by  the  corporation  is  not  authorized  under  any 
circumstances  or  for  any  purpose.  But  the  term  is  some- 
times also  used  in  a  more  limited  sense  ;  that  is,  with  refer- 
ence to  the  rights  of  certain  parties,  when  the  corporation 
is  not  entitled  to  perform  the  act  without  their  consent ;  or 
with  reference  to  a  particular  purpose  when  it  cannot  right- 
fully perform  the  act  for  that  purpose,  although  it  might 
do  so  for  some  other  purpose.'     The  defence  may  be  ap- 

'  Miner's  Ditch  Co.  v.  Zellenbach,  37  Cal.,  543.  "  The  rights  of  strangers 
dealing  with  corporations  may  vary  according  as  the  act  is  ultra  vires  in  one 
or  the  other  of  these  senses.  When  an  act  is  ultra  vires  in  the  first  sense 
mentioned,  it  is  generally,  if  not  always,  void  in  toto,  and  the  corporation  may 
avail  itself  of  the  plea.  But  when  it  is  ultra  vires  in  the  second  sense,  the 
right  of  the  corporation  to  avail  itself  of  the  plea  will  depend  upon  the  circum- 
stances of  the  case.  In  the  former  case,  the  defence  of  ultra  vires  is  available 
to  the  corporation  as  against  all  persons,  because  they  are  bound  to  know,  from 
the  law  of  its  existence,  that  it  has  no  power  to  perform  the  act.  But  in  the 
latter  case,  the  defence  may  or  may  not  be  available,  depending  upon  the  ques- 


292  CONTRACT    ULTRA    VIRES.  §  219. 

plicablc  to  a  contract  which  in  itself  would  be  unobjection- 
able were  the  corporation  authorized  to  enter  into  such  an 
engagement.  "  When  acts  of  a  corporation  are  spoken  of 
as  nlh^a  vires,  it  is  not  intended  that  they  are  unlawful,  or 
even  such  as  the  corporation  cannot  perform  ;  but  merely 
those  which  are  not  within  the  powers  conferred  upon  the 
corporation  by  the  act  of  its  creation,  and  are  in  violation 
of  the  trust  reposed  in  the  managing  board,  by  the  share- 
holders, that  the  affairs  shall  be  managed  and  the  funds  ap- 
plied solely  for  the  carrying  out  of  the  objects  for  which 
the  corporation  was  created."'  The  objection  that  the  con- 
tract is  ultra  vires  may  be  taken  in  suits  against,  as  well  as 
in  those  brought  by,  corporations.  This  necessarily  fol- 
lows, a  void  contract  being  incapable  of  enforcement  by 
either  party  ;  and  if  the  corporation  were  estopped  from 
denying  its  power,  the  estoppel  would  operate  with  like 
effect  upon  those  w^ho  contracted  with  it,  and  the  result 
would  be  that  practically  the  corporation  would  be  without 
limitation  as  to  its  powers."  The  distinction  between  pri- 
vate individuals  and  corporations  is,  that  while  the  former 
may  make  any  contract  not  prohibited  by  law,  or  against 
public  policy,  the  latter  can  exercise  no  powers  not  con- 
ferred on  them  by  their  charters.' 


tion  whether  the  party  dealing  with  the  corporation  is  aware  of  the  intention  to 
perform  the  act  for  an  unauthorized  purpose,  or  under  circumstances  not  justify- 
ing its  performance.  And  the  test,  as  between  strangers  having  no  knowledge 
of  an  unlawful  purpose  and  the  corporation,  is  to  compare  the  terms  of  the  con- 
tract with  the  provisions  of  the  law  from  which  the  corporation  derives  its 
powers ;  and  if  the  court  can  see  that  the  act  to  be  perfonned  is  necessarily  be- 
yond the  powers  of  the  corporation  for  any  purpose,  the  contract  cannot  be  en- 
forced, otherwise  it  can."     lb.,  per  Sawyer,  C.  J. 

'  Allen,  J.,  in  Whitney  Arms  Co.  v.  Barlow,  63  N.  Y.,  62. 

'  Pennsylv.,  etc.,  Steam  Navigation  Co.  v.  Dandridge,  8  Gill  &  Johns.,  248. 
Although  corporations  are  in  general  bound  by  their  contracts  under  seal  the 
same  as  individuals,  yet  when  a  corporation  is  created  for  a  special  purpose  with 
limited  powers,  the  contract  does  not  bind  it  if  it  appear  from  the  express  pro- 
visions of  the  act  creating  the  corporation,  or  by  reasonable  inference,  that  the 
contract  was  ultra  vires.  South  Yorkshire,  etc.,  Co.  v.  Gt.  Northern  R.R.  Co., 
9  Exch.,  55,  84 ;  Mayor,  etc.,  of  Norwich  v.  Norfolk  R.R.  Co.,  4  Ell.  &  Bl.,  397. 

'  Head  v.  Providence  Ins.  Co.,  2  Cranch,  127  ;  Bank  of  U.  S.  v.  Danbridge, 
12  Wheat.,  64 ;  Han.  &  St.  Jos.  R.R.  Co.  v.  Marion,  36  Mo.,  294  ;  Mathews  v. 
Skmker,  62  lb.,  329  ;  Nat.  Bank  v.  Taylor,  56  Pa.  St.,  15. 


§   2  20.  CORPORATE    POWERS.  293 

§  220.  Constj^iiction  and  scope  of  corporate  powers. — 
With  reference  to  the  powers  and  capacities  of  corpora- 
tions, their  charter  must,  Hke  every  other  statute,  be  con- 
strued as  an  entirety.'  In  determining  whether  a  given  act 
is  within  it,  the  general  purpose  for  which  the  corporation 
was  formed  must  be  considered,  and  such  reasonable  con- 
struction be  given  to  the  terms  employed  as  will  tend  to 
promote  such  purpose.''  A  corporation  is  not  limited  to 
the  powers  specifically  granted,  but  possesses  in  addition  all 
such  powers  as  are  necessarily  incident  to  those  specified, 
or  essential  to  the  purposes  and  objects  of  the  corporate 
existence.''  A  municipal  corporation  therefore  may,  at 
common  law,  unless  restrained  by  some  statute,  purchase 
and  hold  all  such  real  estate  as  may  be  necessary  to  the 
proper  exercise  of  any  power  specifically  conferred,  or  es- 
sential to  the  purposes  of  municipal  government  for  which 
it  was  created.*  And  a  railroad  company  may,  without  any 
special  authorization,  contract  for  the  purchase  of  land  for 
the  purpose  of  enlarging  a  terminus.'  So,  if  the  charter 
of  a  railroad  company  empowers  them  to  contract  for  the 
transportation  and  delivery  of  persons  and  property  over 
its  road  at  any  place  beyond  the  termini  of  the  road,  the 
company  may  purchase  a  steamboat  to  carry  freight  and 
passengers  from  the  terminus  of  their  road  to  the  line  of 
another  ;  and  a  note  given  by  the  company  for  such  boat 
will  be  binding  upon  them.'  But  the  rule  requiring  cor- 
porations to  keep  within  the  limits  of  their  powers  will  be 
enforced  more  strictly  in  the  case  of  municipal  corporations 


'  White's  Bank  v.  Toledo   Ins.  Co.,    12  Ohio  St.,  601  ;  Talmadge  v.  North 
Am.  Coal  &  Transportation  Co.,  3  Head  Tenn.,  337. 

*  Vandali  v.  South  San  Francisco  Dock  Co.,  40  Cal.,  83. 

*  Bank  of  Augusta  v.  Earle,  13  Peters,  519  ;  Whitman  Mining  Co.  v.  Baker,  3 
Nevada,  386  ;  Coleman  v.  Eastern  Counties  R.R.  Co.,  10  Beav.,  17. 

•■  Ketchum  v.  City  of  Buffalo,  14  N.  Y.,  356  ;  Le  Couteulx  v.  City  of  Buffalo, 
33  lb..  333. 

^  Mayor  of  Norwich  v.  Norfolk  R.R.  Co.,  supra. 

*  Shawmut  Bank  v.  Plattsburgh  &  Montreal  R.R.  Co.,  31  Vt.,  491.     And  see 
White's  Bank  v,  Toledo  Ins.  Co.,  supra. 


294  CONTRACT    ULTRA    VIRES.  §   221. 

than  in  other  cases,  for  reasons  which  are  obvious.  The 
charters  of  such  bodies  are  pubHc  laws  ;  the  city  ordinances 
are  published  before  taking  effect  ;  and  the  business  is  pub- 
licly conducted.  All  persons  can  inform  themselv^es  of  the 
powers  of  a  municipal  corporation,  and  of  the  manner  in 
which  such  powers  are  to  be  exercised  ;  and  if  they  propose 
to  contract  with  it,  they  are  bound  to  inform  themselves  at 
their  peril.' 

§  22  1.  Latitude  allowed  as  to  fiiode  of  effecting  lawful 
object. — A  distinction  has  been  made  between  a  purpose  not 
authorized  by  the  act  of  incorporation,  and  unauthorized 
means  of  effectuating  the  authorized  purpose  ;  the  corpora- 
tion having  power  to  vary  the  mode  by  which  the  given  pur- 
pose is  to  be  attained,  though  any  attempt  to  carry  into  effect 
a  foreign  purpose  would  be  void.  A  railroad  company,  for 
instance,  authorized  to  construct  a  line  from  A.  to  B.,  could 
not,  instead  of  doing  that,  lay  one  from  C.  to  D.  But  if 
part  of  the  originally  designed  route  is  found  impracticable 
or  difficult,  the  company  may  lawfully  enter  into  contracts 
to  effect  a  deviation."^  And  where  the  charter  of  a  corpo- 
ration prescribes  what  species  of  security  shall  be  taken  by 
its  officers  or  agents,  a  different  sort  of  security  from  that 


'  City  of  Leavenworth  v.  Rankin,  2  Kansas,  357,  per  Crozier,  C.  J.  Persons 
dealing  with  the  officers  and  agents  of  municipal  and  other  public  corporations 
"  are  chargeable  with  notice  of  the  powers  which  the  corjxjration  possess,  and 
are  to  be  held  responsible  accordingly."  Thomas  v.  City  of  Richmond,  12 
Wall,  349,  per  Bradley,  J. 

"■  Eastern  Counties  R.R.  Co.  v.  Hawkes,  5  House  of  Lds.,  3'/2.  In  another 
case,  a  railroad  company,  being  authorized  by  statute  to  construct  their  road 
between  specified  termini  crossing  a  certain  river,  encountered  obstacles  in  effect- 
ing their  crossing  there,  and,  with  the  assent  of  the  admiralty  and  the  proprietors, 
they  made  a  pier  in  another  part  of  the  river,  in  order  to  carry  the  railroad  across 
at  that  place.  The  company  having  been  indicted  for  a  nuisance,  it  was  agreed 
by  way  of  compromise,  that  they  should  complete  the  works  within  a  year  in  a 
manner  stipulated,  so  as  to  protect  the  navigation,  and  that,  in  default  thereof, 
the  company  should  pay  one  thousand  pounds  as  liquidated  dam.ages.  In  a  suit 
on  a  deed  containing  a  covenant  to  this  effect,  the  court  differed  in  opinion  as  to 
the  rights  of  the  plaintiff.  Lord  Campbell  held  that  the  covenant  was  bad,  as 
being  for  the  application  of  the  funds  to  a  purpose  other  than  that  for  which  the 
company  was  established.  Earle,  J.,  and  Coleridge,  J.,  considered  the  covenant 
good,  on  the  ground  that  it  was  simply  a  change  of  the  means  and  mode  by  and 
through  which  the  same  purpose  was  to  be  effected.  Mayor  of  Norwich  v.  Nor- 
folk R.R.  Co.,  4  Ell.  &  Bl.,  397. 


§   222.  LEGALITY    OF    TRANSACTION    PRESUMED.  295 

prescribed  may  be  enforced  against  the  person  who  gave 
it'  So,  where  a  provision  in  the  charter  is  designed  to 
protect  the  corporation,  the  corporation  may  waive  the  pro- 
vision ;  and  this  may  be  proved  to  have  been  done,  by  a 
repetition  of  acts  of  a  Hke  or  similar  character.^ 

§  222.  Legality  of  transaction  preswned. — The  contract 
of  a  corporation  is  pi^ima  facie  vaHd,  and  the  burden  of 
proof  is  on  the  party  objecting  to  it  to  show  that  it  is  in 
excess  of  the  company's  powers.'  Therefore,  "the  deaHngs 
of  a  corporation  which,  on  their  face,  or  according  to  their 
apparent  import,  are  within  its  charter,  are  not  to  be  regard- 
ed as  illegal  or  unauthorized,  without  some  evidence  tending 
to  show  that  they  are  of  such  a  character.  In  the  absence 
of  proof,  there  is  no  legal  presumption  that  the  law  has  been 
violated.  On  the  contrary,  these  artificial  bodies,  like 
natural  persons,  are  entitled  to  the  benefit  of  the  rule  which 
imputes  innocence,  rather  than  wrong,  to  the  conduct  of 
men.  A  different  doctrine  would  require  a  corporation, 
even  in  many  of  its  ordinary  transactions,  to  show  that  it 
had  not  transcended  the  limits  of  its  charter."'  Acts  of  a 
corporation  which  cannot  be  legally  accounted  for  except 
on  the  supposition  of  other  acts  done  to  make  them  legally 
operative  and  binding,  are  presumptive  proofs  of  such  other 
acts."  But  unless  the  powers  of  a  corporation,  which  are 
claimed  to  be  implied,  are  directly  and  immediately  appro- 

•  Bank  of  South  Carolina  v.  Hammond,  i  Rich.,  281  ;  Mott  v.  U.  S.  Trust  Co., 
19  Barb.,  568;  U.  S.  Trust  Co.  v.  Brady,  20  lb.,  119;  Littlewort  v.  Davis,  50 
Miss.,  403.  But  see  Spedon  v.  Mayor,  etc.,  of  N.  Y.,  7  Bosw.,  601  ;  21  How. 
Pr.,  395- 

''  Hood  V.  N.  Y.  &  N.  H.  R.R.  Co.,  22  Conn.,  502. 

'  Shrewsbury  &  Birmingham  R.R.  Co.  v.  Northwestern  R.R.  Co.,  6  House  of 
Lds.,  135,  136. 

"  Chautauque  County  Bank  v.  Risley,  19  N.  Y.,  369,  per  Comstock,  J. ;  Farm- 
er's Loan  and  Trust  Co.  v.  Clowes,  3  lb.,  470  ;  De  Groff  v.  American,  etc.,  Co., 
21  lb.,  124;  Yates  V.  De  Bogert,  56  lb.,  526;  Farmer's  Loan  and  Trust  Co.  v. 
Perry,  ",  Sandf.  Ch.,  339 ;  Peru  Iron  Co.  ex  parte,  7  Cowen,  540  ;  Safford  v. 
Wyckoff,  4  Hill,  442  ;  Morris  &  Essex  R.R.  Co.  v.  Sussex  R.R.  Co.,  20  N.  J. 
Eq.,  542  ;  Charleston  &  Jeftersonville  Turnpike  Co.  v.  Willey,  16  Ind.,  34 ;  Dana 
V.  Bank  of  St.  Paul,  4  Minn.,  385  ;  Mitchell  v.  Rome  R.R.  Co.,  17  Ga.,  574;  Ox- 
ford Iron  Co.  V.  Spradlejs  46  Ala.,  98. 

^  Soc.  of  Middlesex  v,  Davis,  3  Mete,  133. 


296  CONTRACT    ULTRA    VIRES.  §  223. 

priated  to  the  execution  of  the  specific  powers,  and  are  a  use- 
ful and  necessary  means  to  give  them  effect,  such  implied 
powers  cannot  be  regarded  as  within  the  scope  of  the  grant' 
"  An  incidental  power  is  one  that  is  directly  and  immediately 
appropriate  to  the  execution  of  the  power  granted,  and  not 
one  that  has  a  slight  or  remote  relation  to  it.'"' 

§  223.  Unauthorized  transaction. — A  contract  which  the 
corporation  had  no  authority  to  make,  will  be  void,  and  in- 
capable of  enforcement,  either  at  law  or  in  equity.'  Where 
a  bank  bought  land  for  the  purpose  of  selling  it,  and  filed 
a  bill  for  specific  performance,  it  was  held  a  good  defence 
that  the  bank  was  authorized  to  hold  such  real  estate  only 
as  it  needed  in  the  transaction  of  its  business,  or  such  as 
had  been  mortgaged  to  it  as  security,  or  conveyed  to  it  in 
satisfaction  of  debts,  or  purchased  at  sales  upon  judgments 
obtained  for  such  debts.'    Such  a  ground  of  defence  on  the 

'  Curtis  V.  Leavitt,  13  N.  Y.,  157,  158. 

^  Hood  V.  N.  Y.  &  N.  H.  R.R.  Co.,  22  Conn.,  i  ;  People  v.  Utica  Ins.  Co.,  15 
Johns.,  358;  N.  Y.  Firemen's  Ins.  Co.  v.  Sturges,  2  Cowen,  664  ;  Same  v.  Ely, 
lb.,  678;  Broughton  v.  Manchester  Water  Works,  3  Barn.  &  Aid.,  9  ;  People  v. 
Trustees  of  Geneva  College,  5  Wend.,  217  ;  Trustees  v.  Peaslee,  15  N.  H.,  317  ; 
Downing  v.  Mt.  Washington  R.R.  Co.,  40  lb.,  230 ;  Fuller  v.  Trustees  of  Plain- 
field  School,  6  Conn.,  533 ;  Com.  v.  Erie  &  Northeast  R.R.  Co.,  27  Pa.  St.,  339 ; 
Dartmouth  College  v.  Woodward,  4  Wheat.,  518  ;  Pacific  R.R.  Co.  v.  Seely,  45 
Mo.,  212  ;  Town  of  Petersburg  v.  Metzker,  21  111.,  205.  But  see  Hart  v.  The 
Rensselaer  &  Saratoga  R.R.  Co.,  8  N.  Y.,  37  ;  Quimby  v.  Vanderbilt,  17  lb.,  306  ; 
Bissell  V.  Mich.  Southern  &  Northern  Ind.  R.R.  Co.,  22  lb.,  258 ;  Buffett  v.  Troy 
&  Boston  R.R.  Co.,  40  lb.,  168. 

^  Mu.  Life  &  Fire  Ins.  Co.  v.  McKelway,  1  Beasley's  Ch.,  133  ;  Pennsylv.,  etc., 
Co.  V.  Dandridge,  8  Gill  &  Johns  ,  248  ;  Pearce  v.  Madison  &  Indiana])olis  R.R. 
Co.,  21  How.,  441  ;  Haynes  v.  Covington,  13  Sm.  &  Marsh,  41 1  ;  Little  v.  O'Brien, 
9  Mass.,  423;  Commercial  Bank  v.  Nolan,  7  How.  Miss.,  508;  Littlewort  v. 
Davis,  50  Miss.,  403.  If  a  corporation,  authorized  to  construct  a  railroad,  by  the 
non  pertbrmance  of  the  conditions  of  its  charter  has  forfeited  or  lost  its  cor- 
porate rights  and  powers,  that  fact  may  be  asserted  by  any  one  whose  lands  or 
property  are  sought  to  be  appropriated  to  the  uses  of  the  corporation  under  the 
laws  authorizing  the  taking  of  private  property  for  public  use.  Matter  of  Brook- 
lyn, etc.,  R.R.  Co.,  72  N.  Y.,  245.  There  may  be  a  good  defence  to  a  suit  for 
the  specific  performance  of  an  executory  contract,  when  a  bill  could  not  be  main- 
tained to  set  aside  the  same  contract. 

*  Bank  of  Michigan  v.  Niles,  i  Doug.,  401  ;  Affg.  S.  C,  i  Walker  Mich.,  99. 
But  see  the  Banks  v.  Poitiaux,  3  Rand  Va.,  136.  Where  a  corporation  is  created 
by  statute  "  for  particular  purposes,  their  deed,  though  under  their  corporate  seal, 
regularly  affixed,  does  not  bind  them,  if  it  appears  by  the  express  provisions 
of  the  statute  creating  them,  or  by  necessary  or  reasonable  inference  from  its 
enactments,  that  the  deed  is  ultra  vires,  that  is,  that  the  Legislature  meant  that 
such  a  deed  should  not  be  made."     South  Yorkshire  R.R.  &  River  Dun  Co.  v. 


§   224-  ENGAGEMENTS    IMPLIEDLY    FORBIDDEN.  297 

part  of  a  corporation,  although  it  may  be  "  unbecoming  and 
ungracious,"  is  nevertheless  valid  when  it  is  made  to  appear 
either  by  the  express  provisions  of  the  act  of  incorporation, 
or  by  necessary  and  reasonable  implication  therefrom,  that 
the  contract  which  is  sought  to  be  enforced  is  beyond  the 
scope  of  the  powers  granted  by  its  charter.' 

§  224.  Engagements  impliedly  forbidden. — With  refer- 
ence to  such  contracts  as  a  corporation  is  impliedly  pro- 
hibited from  entering  into,  it  is  obvious  that  any  intentional 
use  by  the  corporation  of  its  powers  to  defeat  the  objects 
of  its  creation,  must  be  prohibited  by  implication.'  So,  it 
cannot  lawfully  engage  in  objects  foreign  to  the  purposes 
of  its  incorporation,  notwithstanding  such  objects  may  be 
profitable  to  the  company,  and  be  approved  by  the  share- 
holders. A  railroad  company  is  bound  to  apply  all  of  its 
funds  for  the  purposes  provided  in  its  charter,  and  for  no 
other.  Thus,  in  an  action  by  a  railroad  company  against 
another  similar  company,  on  a  covenant  by  the  defendants 
to  pay  to  the  plaintiffs  the  costs  incurred  in  an  application 
to  ParHament  by  the  plaintiffs  at  the  instance  of  the  defend- 
ants for  obtaining  powers  which  the  defendants  thought  it 
for  their  interest  the  plaintiffs  should  possess,  it  was  held 
that  there  could  be  no  recovery.' 

Gt.  Northern  R.R.  Co.,  9  Exch.,  84,  per  Lord  Wensleydale.  A  corporation  con- 
tracted for  the  purchase  of  certain  property,  without  legal  power  to  do  so.  After- 
ward, authority  was  obtained  and  measures  taken  by  the  corporation  under  the 
act  to  fulfil  its  agreement,  but  it  ultimately  refused  to  complete  the  purchase  on 
the  ground  that  the  contract  was  not  under  the  corporate  seal  nor  signed  by  two 
directors.  The  vendor  having  brought  a  suit  for  specific  performance,  the  bill 
was  dismissed  for  the  reason  that  the  contract  was  originally  ultra  vires,  not 
being  made  dependent  upon  obtaining  the  consent  of  the  Legislature.  Leo- 
minster Canal  Co.  v.  Shrewsbury  &  Hereford  R.R.  Co.,  3  K.  &  J.,  654. 

'  Brown  v.  Winnismet  Co.,  11  Allen,  326. 

2  Mayor  of  Norwich  v.  Norfolk  R.R.  Co.,  4  Ell.  &  BL,  397. 

^East  Anglican  R.R.  Co.  v.  Eastern  Counties  R.R.  Co.,  11  C.  B.,  775  ;  S.  C  , 
7  Rail.  Cas.,  150.  And  see  to  the  same  effect,  MacGregor  v.  The  Official  Mana- 
ger of  the  Dover  &  Deal  R.R.  Co.,  18  Q.  B.,  618  ;  S.  C,  7  Rail.  Cas.,  227  ;  Gage 
V.  Newmarket  R.R.  Co.,  18  Q.  B.,  4.57  ;  Eastern  Counties  R  R.  Co.  v.  Hawkes, 
5  House  of  Lds.,  347  ;  Bostock  v.  North  Staffordshire  R.R.  Co.,  4  Ell.  &  Bl., 
798.  Two  railroad  companies,  A.  and  B.,  entered  into  a  contract  by  which  it 
was  agreed  that  the  B.  company  should  pay  to  the  A.  company  seven-thirteenths 
of  the  profits  of  the  carriage  of  passengers  and  goods  over  a  part  of  the  B.  com- 
pany's line,  in  consideration  of  receiving  in  return  six-thirteenths  of  the  proats 


298  CONTRACT    ULTRA    VIRES.  §   225. 

§  225.  Hozv  far  individual  contracting  with  corpora- 
tion protected. — Notwithstanding  the  contract  be  ultra 
vires  as  respects  the  stockholders,  it  does  not  necessarily 


made  by  the  A  company  on  a  certain  portion  of  their  line.  This  agreement 
gave  rise  to  protracted  litigation,  in  which  eminent  English  judges  delivered 
opposing  opinions;  Lord  Cottenham  and  the  Queen's  Bench  inclining  to  the 
view  that  it  was  valid,  and  Lord  Justice  Turner  and  Lord  Cranworth,  sitting  in 
the  House  of  Lords,  strongly  leaning  to  the  opinion  that  it  was  in  excess  of  the 
powers  of  the  companies.  It  was  urged  that  if  such  an  agreement  was  valid  as 
to  part  of  the  line,  why  was  it  not  valid  as  to  the  whole  ?  And  if  so,  there  would 
be  nothing  to  prevent  two  companies  from  placing  their  funds  in  a  common  stock, 
and  dividing  them  among  their  stockholders  in  any  stipulated  proportion.  Shrews- 
bury &  Birmingham  R.R.  Co.  v.  London  &  Northwestern  R.R.  Co.,  2  M'N  & 
G.,324;  3  lb.,  70;  17Q.  B.,652;  i6Beav.,  44;  4  De  G.  M.  &  G.,  115;  6  House 
of  Lds.,  [1 3.  And  see  Lancaster  &  Carlisle  R.R.  Co.  v.  Northwestern  R.R. 
Co.,  2  K.  &  J.,  293.  In  another  case  between  two  railroad  companies,  the  plain- 
tiffs sued  on  a  deed  which  was  given  under  an  agreement  of  the  companies  by 
which  the  defendants  were  to  use  the  line  of  the  other  company  for  the  trans- 
portation of  coal  from  the  field  intersected  by  it,  and  thence  on  to  their  own  line, 
on  payment  to  the  plaintiffs  of  sums  which,  with  the  protits  of  the  company, 
should  enable  them  to  pay  their  proprietors  dividends  varying  according  to  the 
quantity  of  coal  carried  by  the  defendants  over  their  line.  The  argument  turned 
on  the  effect  of  a  statute  (railway  clauses  consolidation  act,  1845,  Sect.  87),  by 
^ which  railway  companies  are  permitted  to  contract  with  one  another  for  the  pas- 
sage over  their  lines  of  wagons,  upon  the  payment  of  such  tolls,  and  under  such 
conditions,  as  may  be  agreed  on.  The  judges  were  divided  in  opinion,  Martin, 
B.,  deciding  that  the  contract  was  ultra  toV^j,  while  Piatt,  B.,  and  Lord  Wesley- 
dale,  held  the  contrary.  The  last  named  thought  it  far  from  clear  that  the  statu- 
tory powers  of  the  company  restrained  them  from  entering  into  such  a  contract 
as  that  sued  on,  and  that  as  the  contract  \mzs  prima  facie  valid,  and  it  had  not 
been  shown  that  the  statute  prohibited  such  a  bargain,  the  agreement  must  be  en- 
forced. This  decision  was  affirmed  in  the  exchequer  chamber.  South  Yorkshire 
R.R.  and  River  Dun  Co.  v.  Gt.  Northern  R.R.  Co.,  9  Ex.,  55,  643.  How  far 
individuals  interested  in  a  public  improvement  may  lawfully  contract  with  a 
municipal  corporation  to  pay  the  expense  of  the  same,  does  not  seem  to  have 
been  fully  settled.  There  are  grave  objections  to  such  engagements,  and  it  seems 
to  us  that  it  would  be  safer,  as  a  rule,  to  discountenance  them.  The  following 
cases  may  be  considered  :  Patchin  v.  Doolittle,  3  Vt.,  457 ;  Com.  v.  Inhabs.  of 
Cambridge,  7  Mass.,  158  ;  Parks  v.  Boston,  8  Pick.,  218  ;  Dudley  v.  Cilley,  5  N. 
H.,  558  ;  Goodwin  v.  Milton,  lb.,  458;  Third  Turnpike  Co.  v.  Champney,  2  lb., 
199;  Knowles'  petition,  22  lb.,  361  ;  Dudley  v.  Butler,  10  lb.,  281  ;  Guernsey  v. 
Edwards,  26  lb.,  224.  Where  the  improvement  of  the  surface  of  a  street  \^as  a 
mere  act  of  ordinaiy  repair,  not  requiring  any  new  location  or  change  of  grade, 
and  a  row  of  shade  trees  was  left  in  the  middle  of  the  highway,  and  granite  curb- 
stones placed  around  them  by  the  city,  at  the  request  of  abutters  on  the  street, 
in  consideration  of  their  promise  to  pay  the  expense  of  such  curb-stones  opposite 
their  lands,  it  was  held  that  such  an  agreement  was  not  illega'.  Springfield  v. 
Harris,  107  Mass.,  532.  A  street  in  a  city  had  for  many  years  been  dedicated  to 
the  public  use,  but  had  not  been  defined  and  recorded.  One  of  the  parties  who 
united  in  the  act  of  dedication,  claimed  that  a  narrow  strip  near  the  middle  of 
the  road  had  not  been  surrendered  to  the  public.  The  defendants,  wishing  to 
have  this  impediment  removed,  and  the  street  accepted  and  recorded,  applied  to 
the  city  to  have  it  done,  agreeing  to  pay  the  damages.  Held,  that  such  agree- 
ment was  not  illegal.  Townsend  v.  Hoyle,  20  Conn.,  i.  Storrs,  J.,  dissenting, 
contended  that  the  undertaking  of  the  defendants  was  without  consideration,  and 
opposed  to  public  policy.     Ellsworth,  J.,  who  delivered  the  opinion  of  the  court. 


§  225-     INDIVIDUAL  CONTRACTING  PROTECTED.        299 

follow  that  it  is  also  bad  in  relation  to  another  party.'  To 
affect  the  latter,  he  must  have  known  at  the  time  of  the 
contract,  that  it  was  intended  for  a  purpose  foreign  to  the 
incorporation  of  the  company."  When,  however,  the  nat- 
ure of  the  contract  is  such  as  to  show  that  it  is  in  excess 
of  the  powers  of  the  company,  both  of  the  parties  will  be 
presumed  to  have  had  this  knowledge,  and  the  contract  be 
deemed  void.  But  such  a  defence  would  not  be  permitted 
to  prevail  against  a  party  who  could  not  be  presumed  to 
have  had  any  knowledge  of  the  want  of  authority  to  make 
the  contract.  Hence,  if  the  question  of  power  depends 
not  merely  upon  the  law  under  which  the  corporation  acts, 
but  upon  the  existence  of  certain  extrinsic  facts  resting 
peculiarly  within  the  knowledge  of  the  corporate  officers, 
then  the  corporation  would  be  estopped  from  denying  that 
which,  by  assuming  to  make  the  contract,  it  had  virtually 

said  :  "  We  must  not  be  considered  as  assenting  to  the  proposition,  that  a  promise 
by  individuals  to  pay  a  part  of  the  expenses  of  public  improvements  ordered  by 
public  authority,  is,  of  course,  illegal  and  void.  We  think  the  amount  of  a  pub- 
lic burthen,  or  the  cost  to  the  public  of  an  improvement,  may  properly  enough 
enter  into  the  question  of  expediency  or  necessity.  A  canal,  a  railroad,  a  bridge, 
a  new  street,  a  public  square,  a  sewer,  is  called  for.  If  made  in  one  way,  or  in 
one  place,  it  will  be  much  better  for  the  public,  though  more  expensive.  But 
individuals  especially  benefited,  stand  ready,  by  giving  t!ieir  land,  their  money, 
or  their  labor,  to  meet  the  extra  expense.  Will  these  promises  be  void,  as  being 
without  consideration  or  against  public  policy .''     We  think  not." 

1  The  following  are  some  of  the  cases  which  have  been  deemed  as  between 
stockholders  and  directors  to  be  transactions  beyond  the  scope  of  the  corporation  : 
The  application  by  a  railroad  company  of  a  portion  of  its  resources  in  obtaining 
the  passage  of  a  bill  to  improve  the  navigation  of  a  river.  Munt  v.  Shrewsbury 
&  Chester  R.R.  Co.,  13  Beav.,  i  ;  in  promoting  a  branch  line.  Gt.  Western 
R.R.  Co.  v.  Rushout,  5  De  G.  &  Sm.,  290 ;  or  in  making  a  part  only  of  the  line 
after  the  rest  was  abandoned.  Cohen  v.  Wilkinson,  5  Rail.  Cas.,  741.  And 
see  Bagshawe  v.  Eastern  Counties  R.R.  Co.,  6  Rail.  Cas.,  152  ;  S.  C,  2  M'N.  & 
G.,  289;  Beman  v.  Rufford,  7  Rail.  Cas.,  48,  75  ;  S.  C,  i  Sim.  N.  S.,  550.  So,  a 
company  was  restrained  from  purchasing  shares  in  another  company.  Solomon 
V.  Laing,  12  Beav.,  339.  So,  a  railroad  company  was  enjoined  from  applying 
any  of  its  funds  in  aiding  a  company  in  establishing  steam  communication  be- 
tween certain  seaports,  which  the  directors  of  the  railroad  company  believed 
would  increase  their  traffic,  and  thus  promote  their  interests.  Coleman  v. 
Eastern  Counties  R.R.  Co.,  10  Beav.,  i  ;  S.  C,  4  Rail.  Cas.,  513.  Although  a 
corporation  will  be  restrained  from  expending  its  funds  in  applying  to  the  Legis- 
lature for  a  bill  outside  the  purposes  of  its  creation.  Atty.  Gen.  v.  Corp.  of 
Norwich,  16  Sim.,  225  ;  Simpson  v.  Denison,  10  Hare,  51  ;  yet,  this  will  not  be 
done,  when  the  proceedings  are  taken,  not  to  extend  the  powers  of  the  corpora- 
tion, but  to  defend  its  existing  rights.     Bright  v.  North,  2  Phil.,  216. 

*  Osipee  Manf.  Co.  v.  Canney,  54  N.  H.,  295. 


30O  CONTRACT    ULTRA   VIRES.  §   2  26. 

affirmed/  In  one  case,  Lord  St.  Leonards  said  that  he  felt 
disposed  "  to  restrain  the  doctrine  of  ultra  vires  to  clear 
cases  of  excess  of  power  with  the  knowledge  of  the  other 
party,  express,  or  implied  from  the  nature  of  the  corpora- 
tion and  of  the  contract  entered  into."'  Where  a  corpora- 
tion is  authorized  to  take  land  for  its  use,  one  who  contracts 
to  sell  his  land  to  it,  is  not  required  to  ascertain  whether  or 
not  the  land  is  strictly  needed  by  the  company  for  such 
use.  Although  the  land  be  not  so  needed,  and  the  funds 
of  the  company  are  misapplied  by  its  purchase,  yet  if  the 
vendor  acted  in  good  faith,  and  without  knowledge  of  the 
misapplication,  the  contract  may  be  enforced  by  him  in 
equity.'  The  same  principle  applies  where  the  company 
purchases  more  land  than  is  required.'  The  defence  "  w^ould 
not  be  available  in  a  suit  brought  by  a  bona  fide  indorsee 
of  a  negotiable  promissory  note,  provided  the  corporation 
was  authorized  to  give  notes  for  any  purpose  ;  and  the 
reason  is,  that  the  corporation,  by  giving  the  note,  has  vir- 
tually represented  that  it  was  given  for  some  legitimate 
purpose,  and  the  indorsee  could  not  be  presumed  to  know 
the  contrary.  The  note,  however,  if  given  by  a  corpora- 
tion absolutely  prohibited  by  its  charter  from  giving  notes 
at  all,  would  be  voidable,  not  only  in  the  hands  of  the 
original  payee,  but  in  those  of  any  subsequent  holder  ;  be- 
cause all  persons  dealing  with  a  corporation  are  bound  to 
take  notice  of  the  extent  of  its  chartered  powers.  The 
same  principle  is  applicable  to  contracts  not  negotiable."  * 

§  226.  Where  the  plaintiff  has  fully  performed. — "The 
executed  dealings  of  corporations  must  be  allowed  to 
stand  for  and  against  both  parties,  where  the  plainest 
rules   of   good    faith    require."'     It  is  now  settled  that  a 

'  Bissell  V.  Mich.  Southern  &  Northern  Ind.  R.R.  Co.,  22  N.  Y.,  258 ;  Monu- 
ment National  Bank  v.  Globe  Works,  loi  Mass.,  57. 

"^  Eastern  Counties  R.R.  Co.  v.  Hawkes,  5  House  of  Lds.,  331. 
3  Ibid.  "  Ibid. 

*  Selden,  J.,  in  Bissell  v.  Mich.  Southern  and  Northern  Ind.  R.R.  Co.,  supra; 
Marsh  v.  Fulton  County,  10  Wall,  676. 

*  Parish  v.  Wheeler,  22  N.  Y.,  494,  per  Comstock,  Ch.  J.    And  see  Silver  Lake 


§   226.      WHERE  THE  PLAINTIFF  HAS  FULLY  PERFORMED.       3OI 

corporation  cannot  avail  itself  of  the  defence  of  ultra 
vires,  when  the  contract  has  been  in  good  faith  fully  per- 
formed by  the  other  party,  and  the  corporation  has  had  the 
full  benefit  of  the  performance,  and  of  the  contract.  If 
an  action  cannot  be  brought  directly  upon  the  agreement, 
either  equity  will  grant  relief,  or  an  action  in  some  other 
form  will  prevail.  So,  if  the  other  party  has  had  the  benefit 
of  a  contract  fully  performed  by  the  corporation,  he  will 
not  be  heard  to  object  that  the  contract  and  performance 
were  not  within  the  legitimate  powers  of  the  corporation  ; 
the  ground  of  defence  of  an  individual  sued  upon  a  con- 
tract with  a  corporation  being  that  the  obligation  is  not 
mutual,  as  the  corporation  would  not  be  bound  by  it.'  In 
the  case  last  cited,  Tindal,  Ch.  J.,  said  :  "  The  defendants 
having  had  the  benefit  of  the  performance  by  the  corpora- 
tion of  the  several  stipulations  into  which  they  entered, 
have  received  the  consideration  for  their  own  promises. 
Such  promise  by  them  is  therefore  not  nudum  pactum. 
They  never  can  want  to  sue  the  corporation  upon  the  con- 
tract in  order  to  enforce  the  performance  of  their  stipula- 
tions which  have  been  already  voluntarily  performed,  and 
therefore  no  sound  reason  can  be  suggested  why  they 
should  justify  their  refusal  to  perform  the  stipulations  made 
by  them  on  the  ground  of  inability  of  the  corporation, 
which  suit  they  can  never  want  to  sustain."  Where  a 
municipal  corporation  issued  and  circulated  notes,  the  value 
of  which  was  received  and  enjoyed  by  the  corporators  in 
the  erection  of  improvements  in  the  city,  it  was  held  that 
the  corporation  was  liable  therefor,  although  it  was  not  au- 
thorized by  its  charter  to  issue  the  notes.'     A  person  who 

Bank  v.  North,  4  Johns.  Ch.,  370 ;  Palmer  v.  Lawrence,  3  Sandf.,  161  ;  State  of 
Indiana  v.  Woram,  6  Hill,  37  ;  Chester  Glass  Co.  v.  Dewey,  16  Mass.,  94 ;  Steam- 
boat Co.  v.  McCutcheon,  13  Pa,  St.,  13;  Steam  Navigation  Co.  v.  Weed,  17 
Barb.,  378. 

'  Whitney  Arms  Co.  v.  Barlow,  63  N.  Y.,  62  ;  Chippendale,  ex  parte,  4  De 
G.  M.  &.  G.,  19  ;  In  re  National  P.  B.  Building  Soc,  L.  R,  5,  Ch.  309;  Li  re 
Cork,  etc.,  R.  C.,  4  lb.,  748;  Fishmonger's  Co.  v.  Robertson,  5  Mc.  &  G.,  131. 

^  Allegheny  City  v.  McClurkan,  14  Pa.  St.,  81.  While  courts  are  inclined  to 
maintain  with  vigor  the  limitations  of  corporate  action  whenever  it  is  a  question 


302  CONTRACT    ULTRA    VIRES.  §   227. 

has  sold  real  estate  to  a  bank  which  has  no  right  to  transact 
business  until  the  charter  creating  it  has  been  approved  by 
Congress,  cannot  question  the  capacity  of  the  bank  to  take 
the  title  after  it  has  paid  the  consideration  for  the  purchase, 
there  being  no  judgment  of  ouster  against  the  bank  at  the 
instance  of  the  government.* 

§  227.  Compelling  repayment. — When  a  contract  with 
a  corporation  is  void,  and  the  other  party  cannot,  for  that 
reason,  maintain  an  action  on  it,  he  may  recover  the  com- 
pensation   paid,    the    parties   not    being   in  pari  delicto.^ 


of  restraining  the  corporations  in  advance  from  passing  beyond  the  boundaries 
of  their  charters,  they  are  equally  inclined,  on  the  other  hand,  to  enforce  against 
them  contracts,  though  ultra  vires,  of  which  they  have  received  the  benefit. 
Lawrence,  J.,  in  Bradley  v.  Ballard,  55  111.,  413.  If  the  other  party  proceeds  in 
the  performance  of  the  contract,  expending  his  money  and  labor  in  the  pro- 
duction of  values  which  the  corporation  appropriates,  the  corporation  will  not 
be  excused  on  the  plea  that  the  contract  was  beyond  its  powers.  lb.  Corpora- 
tions have  the  capacity  to  do  wrong,  and  they  may  overstep  the  limits  placed  by 
law  to  their  powers.  When  they  violate  their  charters  their  acts  are  illegal,  but 
not  necessarily  void.  Rock  River  Bank  v.  Sherwood,  10  Wis.,  230.  They  may 
acquire  title  to  property  in  contravention  of  their  charter,  and  transmit  it  to 
others;  and  in  such  case  it  is  no  defence  for  the  corporation  against  the  claim  of 
one  who,  knowing  the  facts,  paid  the  price  at  its  request,  nor  excuse,  in  not 
crediting  the  proceeds  of  a  mortgage  given  to  secure  the  money  advanced,  that 
the  transaction  was  ultra  vires.  Farmer's  and  Miller's  Bank  v.  Detroit  &  Mil- 
waukee R.R.  Co.,  27  lb.,  372.  The  plea  of  ultra  vires  is  not  to  be  understood 
as  an  absolute  and  peremptory  defence  in  all  cases  of  excess  of  power  without 
regard  to  other  circumstances  and  considerations.  It  is  not  to  be  looked  upon 
as  a  plea  which  denies  the  actual  exertion  of  corporate  power  when  a  corpora- 
tion enters  into  an  engagement  which,  according  to  its  charter,  it  ought  not  to 
make.  But  because  such  was  the  nature  of  the  contract,  it  presents  the  breach 
of  trust  or  duty  to  the  shareholders  as  an  excuse  for  the  non-performance.  If 
the  person  dealing  with  a  corporation  knows  of  the  wrong  done  or  contem- 
plated, and  he  cannot  show  the  acquiescence  of  the  shareholders,  he  ought  not 
to  complain  if  he  cannot  enforce  the  contract.  Bissell  v.  Mich.  Southern  & 
Northern  Ind.  R.R.  Co.,  22  N.  Y.,  258,  per  Comstock,  J.  The  plea  is  not  to  be 
entertained  where  its  allowance  will  do  a  great  wrong  to  innocent  third  per- 
sons. If  the  shareholders  acquiesced  in  the  abuse,  the  plea  cannot  be  inter- 
posed, lb.  But  see  Hood  v.  N.  Y.  &  N.  H.  R.R.  Co.,  22  Conn.,  502,  in  which 
Ellsworth,  J.,  said  :  "  If  the  directors,  even  with  all  the  stockholders  at  their 
side,  transcend  the  limits  of  the  charter,  and  make  contracts  foreign  to  their 
business,  they  only  act  for  themselves.  The  reason  is,  there  can  be  no  consent 
of  the  corporation.  The  consent  of  individual  stockholders,  however  repeated, 
is  not  their  consent,  nor  is  it  admissible  proof  to  establish  consent ;  so  that,  if 
it  were  true  every  stockholder  had  expressed  his  consent,  it  would  make  no  dif- 
ference in  the  case." 

'  Smith  v.  Sheeley,  12  Wall,  358. 
,  "^  Robinson  v.  Bland,  2  Burr.,  1077  ;  Howson  v.  Hancock,  8  Term  R.,  577  ; 
Utica  Ins.  Co.  v.  Scott,  19  Johns.,  i  ;  Same  v.  Cadwell,  3  Wend.,  296;  Same  v. 
Bloodgood,  4  lb.,  652  ;  Little  v.  O'Brien,  9  Mass.,  423  ;  Epis.  Soc.  v.  Epis.  Ch. 
in  Dedham,  i  Pick.,  ^72  ;  White  v.  Franklin  Bank,  22  Pick.,  181  ;  Rich  v.  Errol, 
51  N.  H.,  361. 


§   227-  COMPELLING    REPAYMENT.  3O3 

Where  a  bank  sold  bonds  of  the  State  for  less  than  their 
par  value,  in  violation  of  its  charter,  and  the  transaction 
was  consequently  illegal  and  void,  it  was  held  that  as  the 
bank  had  appropriated  to  its  use  the  money  advanced  upon 
the  bonds,  it  was  bound  in  equity  to  repay  the  money,  with 
interest,  upon  a  re-delivery  of  the  bonds.'  When  real  estate 
is  sold  by  a  corporation  without  authority,  and  the  vendee 
takes  possession,  he  need  not  surrender  possession  before 
bringing  an  action  to  recover  the  purchase  money.  "  The 
cases  in  which  possession  must  be  surrendered  before  an  ac- 
tion for  the  purchase  money  can  be  brought,  are  those 
where  a  contract  has  been  made,  and  possession  has  been 
taken  thereunder,  and  the  vendee  seeks  to  rescind  the  con- 
tract on  the  ground  of  defective  title,  or  the  inability  of  the 
vendor  to  perform  the  contract  on  his  part,  or  of  some 
fraudulent  representations  inducing  its  execution.  In  these 
cases  the  vendee  must  offer  to  restore  whatever  he  has  re- 
ceived before  he  can  call  upon  the  vendor  to  refund  the 
purchase  money.  Where  the  contract  is  void  there  is 
nothing  to  rescind  ;  no  rights  are  acquired,  and  there  are, 
in  consequence,  no  rights  to  restore." ' 

'  Whitney  v.  Peay,  24  Ark.,  22.  If  money  be  paid  in  advance  to  a  corporation 
on  a  contract  ti//ra  %>ires,  the  party  paying  the  money  may  recover  it  in  an  action 
for  money  had  and  received,  without  any  previous  demand.  Dill  v.  Wareham, 
7  Mete,  438. 

*  McCracken  v.  City  of  San  Francisco,  16  Cal.,  591,  per  Field,  J. 


CHAPTER   IX. 

STAT  U  T  E     C)  F      FRAUDS, 

228.  Orig-in  and  language  of  statute, 

229.  Requirements  of  statute. 

230.  Prel'ininary  consideration. 

231.  Leading  requisites  of  memorandum. 

232.  Memorandum  may  consist  of  several  writings. 

233.  Separate  papers  constituting  memorandum  must  refer  to  each  other. 

234.  Memorandum  must  contain  substantial  terms  of  contract. 

235.  Receipt,  or  letters,  when  sufficient  evidence  of  agreement. 

236.  Examples  of  insufficient  memorandums. 

237.  What  description  of  ical  estate  sufficient. 

238.  Parol  evidence,  when  admissible,  to  identify  property  sold. 

239.  By  which  party  memorandum  must  be  signed. 

240.  place  and  character  of  signature. 

241.  Party  in  putting  his  name  to  the  memorandum  must  have  intended   to 

sign  it. 

242.  Who  competent  to  sign  the  memorandum  as  agent. 

243.  Agency  how  created. 

244.  Subsequent  ratification  of  acts  of  agent. 

245.  Manner  of  signing  by  agent. 

246.  Agency  of  auctioneer. 

247.  Requisites  of  memorandum  of  sale  when  made  by  auctioneer. 
•748.  Exceptions  to  the  statute. 

249.  Where  defendant  seeks  to  take  advantage  through  fraud. 

250.  In  case  of  trusts  arising  by  operation  of  law. 

251.  Grounds  upon  which  ecjuity  interferes  in  cases  of  implied  trust. 

252.  Rule  where  property  is  purchased  at  execution  sale  for  the  benefit  of  the 

judgment  debtor. 

253.  In  case  of  agreement  that  purchasers'  rights  shall  be  those  of  a  mortgagee. 

254.  Where  a  material  term   has  been   omitted  through  fraud,  accident,  or 

mistake. 

255.  Where  fraud  is  premeditated. 

256.  Plaintiff  has  no  remedy  if  he  has  parted  with  nothing  on  the  faith  of  the 

agreement. 

257.  Effect  of  part  performance  in  general. 

258.  States  in  which  doctrine  of  part  performance  not  recognized. 

259.  Remedy  at  law  in  case  of  part  performance. 

260.  Grounds  of  relief  where  there  has  been  part  performance. 

261.  What  in  general  will  constitute  part  performance. 

262.  Acts  not  amounting  to  part  performance. 

263.  What  must  be  shown  to  make  out  part  performance, 

264.  What  agreement  essential. 

265.  Proof  of  agreement  required. 

266.  When  part  of  the  agreement  is  within  the  statute. 

267.  When  the  agreement  is  in  behalf  of  a  stranger. 

268.  Mere  payment  of  money  not  sufficient. 

269.  Reasons  for  rule  in  relation  to  payment. 

270.  Effect  of  possession  in  general. 


§2  28.  WHEN    AND    FOR    WHAT    PURPOSE    ENACTED.  305 

271.  Possession  in  case  of  a  g'ift. 

272.  What  possession  by  vendee  of  land  requisite. 

273.  Length  of  possession  how  regarded. 

274.  Possession  must  be  solely  referable  to  agreement. 

275.  Proof  of  agreement  from  possession  by  tenant. 

276.  Character  of  possession  required. 

277.  Possession  under  agreement  for  partition, 

278.  Settlement  of  division  line. 

279.  Exchange  of  lands. 

280.  The  making  of  improvements  on  land  by  purchaser. 

281.  Improvements  must  be  valuable. 

282.  Labor  bestowed  upon  the  land  by  the  purchaser. 

283.  Parol  license  when  binding. 

284.  Gift  of  land,  followed  by  improvements. 

285.  Promise  of  parent  to  convey  land  to  child. 

286.  Promise  of  father  to  devise  land  to  son. 

287.  Donor  when  required  to  pay  for  improvements. 

288.  Part  performance  by  marriage. 

289.  Steps  taken  preparatory  to  performance. 

290.  Agreements  not  to  be  performed  within  a  year. 

291.  Evidence  of  parol  agreement. 

292.  Agreement  how  pleaded. 

§  228.  When  a7id  for  what  purpose  enacted,  and  what  it 
requires. — It  may  constitute  a  defence,  that  the  contract  is 
within  the  statute  of  frauds.  This  statute,  which  had  its 
origin  in  the  reign  of  Charles  the  II.,  was  one  of  several 
other  enactments  which  distinguished  that  period,  and 
marked  an  advancing  civilization.  It  was  passed  in  1676, 
to  change  the  common  law  by  which  title  to  land  could  be 
passed  by  livery  of  seisin  without  writing,  the  object  being 
to  avoid  the  frauds  and  the  uncertainties  of  titles  which  had 
grown  out  of  the  old  law.  When  livery  of  seisin  w^as  a 
sufficient  form  of  transferring  title  to  land,  it  was  an  open 
and  notorious  act,  performed  in  the  presence  of  neighbors, 
accompanied  by  symbolical  delivery  of  the  turf  or  twig,  and 
a  declaration  of  the  quantity  of  the  estate  granted.  But 
even  this  solemn  investiture  at  common  law  was  so  open 
to  frauds  and  perjuries,  that  it  called  for  the  correction  of 
some  statute  requiring  the  contract  to  be  put  in  writing. 
The  statute  of  29  Chas.  II.,  Sec.  4,  provides  that  no  action 
shall  be  brought  "  to  charge  any  person  upon  any  agreement 
made  in  consideration  of  marriage,  or  upon  any  contract  or 
sale  of  lands,  tenements,  or  hereditaments,  or  any  interest  in 
or  concerning  them,  or  upon  any  agreement  that  is  not  to 
20 


306  STATUTE    OF    FRAUDS.  §   229. 

be  performed  within  the  space  of  one  year  from  the  making 
thereof,  unless  the  agreement  upon  which  such  action  shall 
be  brought,  or  some  memorandum  or  note  thereof,  shall  be 
in  writing  and  signed  by  the  party  to  be  charged  therewith, 
or  by  some  person  thereunto  by  him  lawfully  authorized." 
The  English  statute  has  been  substantially  re-enacted  in 
most  of  the  States.  In  some  of  them,  the  contract  is  de- 
clared void  if  not  in  conformity  with  the  provisions  of  the 
statute.'  Special  clauses  in  the  statutes  of  the  different 
States  will  be  adverted  to  hereafter  in  discussing  the  dis- 
tinctive principles  of  the  subject. 

§  229.  Characteristics. — It  will  be  observed  that  the 
foregoing  enactment  does  not  refer  to  the  solemnities  of 
the  contract,  but  to  the  procedure ;  so  that  a  suit  cannot 
be  maintained,  where  the  statute  prevails,  to  enforce  an 
agreement  made  abroad  and  valid  there,  which,  if  made 
where  the  suit  is  brought,  would  have  been  incapable  of 
enforcement  by  reason  of  the  statute."*  It  has  been  said 
that  "  the  statute  is  not  a  mere  rule  of  evidence,  but  a  limita- 
tion of  judicial  authority  to  afford  a  remedy.  It  requires 
that  contracts  for  the  sale  of  lands,  in  order  to  be  enforced 
by  judicial  proceedings,  must  be  substantiated  by  some  writ- 
ing. This  provision  of  law  cannot  be  dispensed  wnth  merely 
for  the  reason  that  the  want  of  such  writing  was  occasioned 
by  accident,  mistake,  or  fraudulent  representations,  unless 
some  other  ingredient  enters  into  the  case  to  give  rise  to 
equities  stronger  than  those  which  stand  upon  the  oral  con- 
tract alone  which  estop  the  other  party  from  setting  up  the 
statute.'" 

'  This  is  the  case  in  the  following  States:  Alabama,  Code  1867,  Sec.  1862; 
California,  Code,  Sec.  1741  ;  Michigan,  Comp.  Laws  1871,  Vol.  II.,  p.  1455,  Ch, 
166,  Sec.  8  ;  Minnesota,  Sis.  1873,  Vol.  I.,  p.  692,  Sec.  12;  Nebraska,  Sts.  1873, 
p.  392,  Ch.  25,  Sec.  5;  New  York,  Rev.  Sts.  6th  Ed.,  Vol.  3,  p.  141  ;  Oregon, 
Gen.  Laws  1872,  Ch.  8,  Sec.  775  ;  Wisconsin,  Sts.  1871,  Vol.  II.,  Ch.  106,  Sec.  8, 

*  Leroux  V.  Brown,  12  C.  B.,  801. 

*  Wells,  J.,  in  Glass  v.  Hulbert,  102  Mass.,  25.  See  remarks  of  Chapman,  C.  J., 
in  Stockbridge  Iron  Co.  v.  Hudson  Iron  Co.,  Ibid,  45.  A  parol  agreement  for 
the  sale  or  exchange  of  land,  may  be  specifically  enforced,  where  it  was  made 
before  the  statute  of  frauds  was  passed.     Williams  v.  Lewis,  5  Leigh,  686.     A 


§$230,    231.  WHAT    DEEMED    SUFFICIENT.  %0J 

§  230.  Preliminary  inquiry. — The  first  consideration 
which  obviously  suggests  itself  in  this  connection  is,  what 
constitutes  a  sufficient  "agreement,  or  memorandum  or 
note  thereof  "  within  the  meaning  of  the  statute  ;  and  this 
includes  not  only  the  phraseology  of  the  contract,  but  its 
mode  of  execution. 

§  231.    What  deemed  sufficient. — The  statute  will  be  sat- 


court  of  equity  will  compel  specific  performance  of  a  contract,  entered  into  by  the 
assignee  of  a  bond  for  title,  to  pay  the  purchase  money  to  the  original  vendor. 
It  is  not  a  parol  promise  to  answer  for  the  debt  of  another  ;  nor  is  it  a  parol  con- 
tract for  the  sale  of  land.  Ford  v.  Finney,  35  Ga.,  258,  A  pa-ol  agreement  that 
if  A.  will  advance  to  B.  fourteen  hundred  dollars,  B.  will  assign  to  A.  the  sheriff's 
certificate  of  sale  of  real  estate,  and  after  A.  has  done  certain  specified  things 
relating  to  a  mortgage  on  the  land,  and  other  proceedings,  that  A.  shall  sell  the 
property,  and  if  he  is  not  repaid  out  of  the  proceeds  of  such  sale  the  amount  ad- 
vanced, B.  will  pay  one-half  of  the  deficiency,  is  a  valid  contract  not  within  the 
statute  of  frauds.  Fraser  v.  Child,  4  E.  D.  Smith,  153.  An  oral  agreement,  made 
by  an  inventor  before  letters  patent  are  issued,  to  assign  an  interest  in  his  in- 
vention to  a  capitalist  who  is  to  contribute  the  money  necessary  to  make  the 
invention  available  in  the  form  of  a  patent,  and  both  to  contribute  their  services 
to  make  it  remunerative,  is  not  an  agreement  for  the  sale  of  goods,  wares,  or 
merchandise,  within  the  statute  of  frauds  ;  nor  one  which  might  not  be  performed 
within  a  year;  but  an  agreement  for  a  partnership.  Such  an  agreement  is  valid, 
and  capable  of  being  enforced  in  equity,  by  compelling  an  assignment,  an  account, 
and  such  other  relief  as  the  circumstances  of  the  case  may  require.  Somerby  v. 
Buntin,  118  Mass.,  279.  "  Before  letters  patent  are  obtained,  the  invention  ex- 
ists only  in  right,  and  neither  that  right,  nor  any  evidence  of  it,  has  any  outward 
form  which  is  capable  of  being  transferred  or  delivered  in  specie.  The  words  of 
the  statute  have  never  yet  been  extended  by  any  court,  beyond  securities  which 
are  subjects  of  common  sale  and  barter,  and  which  have  a  visible  and  palpable 
form."  lb.,  per  Gray,  C.  J.  It  was  formerly  held  in  England,  that  shares  in  a 
corporation  were  goods,  wares,  and  merchandise  within  the  statute  of  frauds. 
Mussel  V.  Cooke,  Prec.  Ch.,  533;  CruU  v.  Dodson,  hel.  Cas.  in  Ch.,  41  ;  and  it 
has  been  held  in  Massachusetts,  that  such  shares,  and  even  promissory  notes, 
fall  within  the  statute.  Tisdale  v.  Harris,  20  Pick.,  9;  Baldwin  v.  Williams,  3 
Mete,  365.  But  the  modern  decisions  in  England  are  the  other  way.  Browne 
on  St.  of  Frauds,  Sees.  296,  298. 

Where  A.,  a  tenant  for  life,  allowed  B.  to  cut  a  ditch  through  her  land  to  sup- 
ply his  mill  with  water,  and  upon  her  death,  C,  the  remainder  man,  demanded 
compensation,  and  a  verbal  agreement  was  made  that  B.  should  have  the  use  of 
the  ditch  for  a  sum  to  be  fixed  by  arbitrators,  and  C.  refused  to  perform  their 
award,  it  was  held  that  the  statute  of  frauds  was  a  bar  to  B.'s  bill  for  relief,  and 
the  bill  was  dismissed  with  costs.  Hamilton  v.  Jones,  3  Gill  &  Johns.,  127.  A 
contract  to  sell  a  stock  of  drugs,  the  seller,  as  a  part  of  the  transaction,  verbally 
agreeing  to  give  the  buyer  a  three  years'  lease  of  the  store,  is  a  contract  within 
the  statute,  and  a  bill  for  specific  performance  was  properly  dismissed.  Strehl 
V.  Evers,  66  111.,  "]"].  See  Schulter  v.  Bockwinkle,  19  Mo.,  674  ;  Wdliam  &  Mary 
College  V.  Powell,  12  Gratt.,  372.  A.  sold  land  to  B.,  and  gave  a  bond  for  con- 
veyance on  payment  of  the  purchase  price.  Afterward,  judgment  was  obtained 
against  B.,  on  a  note  in  which  A.  was  surety,  and  execution  issued  against  B. 
No  property  of  B.  having  been  found,  A.  directed  the  sheriff  to  levy  on  this  lot, 
promising  to  make  a  good  title  to  the  purchaser.  Held,  that  as  the  promise  was 
verbal,  it  was  within  the  statute  of  frauds,  and  could  not  he  enforced.  Bryan 
v.  Jamison,  7  Mo.,  106. 


308  STATUTE    OF    FRAUDS.  §   23 1, 

isfied  by  a  writinpr,  however  informal,  which  contains, 
either  expressly  or  by  necessary  inference,  all  the  terms  of 
the  ao;reement,  to  wit :  the  names  of  the  parties,  the  subject 
matter  of  the  contract,  the  consideration,  the  promise,  and 
the  signature  of  the  party  sought  to  be  charged,  leaving 
nothing  open  to  future  treaty.'  It  need  not  be  under  seal, 
nor  acknowledged  before  a  magistrate.  Nor  are  words  of 
inheritance  necessary  w^here  the  circumstances  show  an  in- 
tention to  pass  the  fee.''  Such  writing  may  be  by  an  an- 
swer to  a  bill,  an  affidavit  in  equity,  in  bankruptcy,  or  a  re- 
ceipt for  the  purchase  money,  a  bond,  a  note,  or  a  letter 
written  by  the  party  to  be  charged  to  the  person  with 
w^hom  he  contracted,  or  to  any  other  person.'  It  may  pur- 
port to  be  in  the  language  of  the  vendor,  or  of  the  vendee, 
or  of  both.  When  it  purports  to  be  in  the  language  of  the 
vendee,  by  subscribing  it  the  vendor  vouches  for  the  facts 
therein  stated  and  adopts  it  as  his  own,  and  it  thereupon  be- 
comes the  joint  act  of  both.*     A  memorandum  in  pencil  is 

'  Laythoaq?  v.  Bryant,  2  Bing.  N.  C,  735  ;  Ogilvie  v.  Foljambe,  3  Men,  53; 
Nichols  V.  Johnson,  10  Conn  ,  192  ;  Doty  v.  Wilder,  15  111.,  407  ;  McConnell  v. 
Brillhart,  17  lb.,  354;  Johnson  v.  Dodge,  lb.,  433;  McFarson's  Appeal,  11  Pa, 
St.,  503;  Sanborn  v.  Flagler,  9  Allen,  474;  Stone  v.  Browning,  68  N.  Y.,  598. 
A  father,  who  resided  in  C.  county,  promised  his  son,  who  was  then  living  in 
L.  county,  that  if  he  would  remove  to  a  piece  of  land  belonging  to  and  near  the 
residence  of  the  former,  he  would  give  the  land  to  his  son.  The  son,  at  the  time 
of  the  promise,  had  a  family.  He  accepted  the  offer  and  removed  to  the  land, 
and  his  father  assigned  to  him  the  certificate  of  entry  in  these  words  :  "  I,  Jo- 
seph Halsa,  do  si7ie  the  within  certificate  over  to  Amos  Halsa,  which  ir  to  em- 
power him  to  lift  the  deed  in  his  own  name.  April  18,  1835.  Joseph  Halsa." 
The  officers  of  the  Land  Office  refused  to  give  a  patent  for  the  land  to  the  son 
upon  his  claim  under  this  assignment,  and  delivered  it  to  the  father,  i  he  son 
then  applied  for  a  deed,  and  upon  the  father  declining  to  make  a  conveyance 
vesting  the  title  in  the  son,  he  filed  a  bill  for  specific  performance.  It  was  held 
that  the  assignment  of  the  certificate  was  a  sufficient  note  or  memorandum  to 
take  the  case  out  of  the  statute  of  frauds.  Halsa  v.  Halsa,  8  Mo.,  393.  But 
where  the  consideration  named  in  the  agreement  was  the  assuming  of  a  debt  of 
the  vendor,  "and  the  balance  of  the  purchase  money  to  be  paid  on  such  terms 
as  may  be  agreed  on  between  said  parties,  "  it  was  held  that  the  agreement 
could  not  be  enforced,  as  the  court  could  not  compel  parties  to  agree.  Huff  v. 
Shepard,  58  Mo.,  242. 

"  McFarson's  Appeal,  supra. 

'  Barkworth  v.  Young,  4  Drew,  13;  Ewins  v.  Gordon,  49  N.  H.,  444;  Tripp 
V.  Bishop,  56  Pa.  St.,  424. 

^Joseph  V.  Holt,  37  Cal.,  250;  Welford  v.  Beazeley,  3  Atk.,  503;  Child  v. 
Comber,  3  Swanst.,  423,  n.  A.  having  verbally  agreed  to  bid  in  land  for  B.  at  a 
sherift's  sale,  took  the  title  in  his  own  name,  but  signed  and  delivered  to  B.  an 


§   232. 


HOW  A  BINDING  AGREEMENT  MAY  BE  MADE.  3O9 


sufficient.'  The  whole  contract  must  be  written,'  or 
printed/  The  contract  itself,  and  the  memorandum 
which  is  necessary  to  its  validity  under  the  statute  of 
frauds,  are  in  their  nature  distinct  things.  The  statute 
presupposes  a  contract  by  parol.  The  contract  may  be 
made  at  one  time,  and  the  note  or  memorandum  of  it  at  a 
subsequent  time.  Where,  however,  the  promise  of  one 
party  is  the  consideration  for  the  promise  of  the  other,  the 
promises  must  be  concurrent  and  obligatory  on  both  par- 
ties at  the  same  time.* 

§  232.  Hoiv  a  binding  agreenieiit  may  be  made. — The 
writing  itself  may  contain  all  the  particulars  of  the  contract, 
or  it  may  refer  to  some  other  instrument  in  writing  for  a 
part  of  them.  The  instrument  subscribed  may  be  partly 
written  and  partly  printed,'  and  consist  of  one  or  more 
pieces  of  paper,  which,  when  connected,  show  the  parties, 
property,  terms,  and  consideration,  and  form  together  the 
whole  contract."     Sometimes  there  is  a  writing  without  sig- 

account  in  which  he  charged  B.  with  the  purchase  money.  Held,  a  sufficient 
memorandum  to  take  the  case  out  of  the  statute  of  frauds,  and  let  B.  into  a  full 
investigation  of  the  whole  transaction.  Denton  v.  M'Kenzie,  r  Dessaus  Eq., 
289. 

'  Draper  v.  Pattina,  2  Speers,  292  ;  Merritt  v.  Clason,  12  Johns.,  484. 

^  Patton  V.  Develin,  2  Phila.,  103;  Cory  v.  Hyde,  49  Cal.,  470. 

^  See  next  section. 

■•  Lester  V.  Jewett,  12  Barb.,  502.  The  following  memorandum  of  sale  was 
held  insufficient,  it  not  being  mutually  binding:  "  This  instrument  of  writing  is 
to  certify  that  I  have  this  day  sold  to  J.  R.  Shivell  a  certain  tract  of  land  de- 
scribed in  a  deed  which  has  been  duly  acknowledged,  which  deed  is  now  in  my 
possession,  and  which  is  to  be  delivered  to  said  Shivell  on  the  payment  of  two 
thousand  dollars  on  the  25th  of  December,  1863.  J.  B.  Jones."  Jones  v.  No- 
ble, 3  Bush.  Ky.,  694.  See  Yerger  v.  Green,  4  Gill,  472 ;  Duvall  v.  Myers,  2 
Md.  Ch.,  401. 

*  "  It  has  never  been  considered  any  objection  to  contracts  required  by  the 
statute  of  frauds  to  be  in  writing,  that  they  were  printed.  It  is  true,  that  in  these 
cases,  usually  the  signature  at  the  bottom  is  in  manuscript,  and  the  printed  articles 
of  contract  leave  the  name  to  be  filled  up.  In  such  cases  the  signature  by  the 
pen  is  necessary  to  the  execution  of  the  contract.  And  this  is  the  more  expedi- 
ent mode,  as  it  furnishes  the  greater  facility  for  ascertaining  its  genuineness." 
Dewey,  J.,  in  Com.  v.  Ray,  3  Gray,  447. 

"  Allen  V.  Bennet,  3  Taunt.,  169  ;  Ridgway  v.  Wharton,  3  De  G.  M.  &  G.,  677  ; 
S.  C,  6  House  of  Lds.,  238  ;  Gaston  v.  Frankum,  2  De  G.  &  Sm.,  561  ;  Powell 
V.  Dillon,  2  B.  &  B.,  416  ;  Esmay  v.  Gorton,  18  111.,  483  ;  Tallman  v.  Franklin,  14 
N.  v.,  584.  The  memorandum  may  be  supplied  by  documents  and  letters  writ- 
ten at  various  times,  if  they  all  appear  to  have  relation  to  it,  and  if  coupled  to- 


3IO  STATUTE    OF    FRAUDS.  §   232. 

nature  which  contains  all  the  terms  of  the  contract,  and  a 
letter  of  the  party  referring-  to  the  document.  But,  in  a 
transaction  of  this  nature,  care  must  be  taken  that  the  letter 
distinctly  recognizes  and  adopts  the  writing.  A  written 
agreement  was  left  in  the  possession  of  the  defendant,  who, 
in  reply  to  a  letter  from  the  plaintiff's  solicitor  asking  the 
defendant  to  meet  him  and  sign  the  agreement,  wrote  stat- 
ing that  he  had  been  from  home,  acknowledged  that  he  had 
said  that  his  word  should  be  as  good  as  his  bond,  and  that 
there  was  time  enough  before  Michaelmas  to  settle  every- 
thing, and  again  said  that  "  his  word  should  always  be  as 
good  as  any  security  he  could  give,"  It  was  held  that  the 
letters  and  paper  together  constituted  a  valid  agreement. 
Lord  Thurlow  said  :  "  If  a  letter  cannot  be  referred  to  the 
agreement,  or  does  not  contain  proper  terms,  I  cannot  treat 
it  as  out  of  the  statute.  But  I  confess,  on  what  appears 
here,  the  papers  do  refer  to  that  agreement,  and  contain  a 
promise  to  perform  it.  The  defendant  did  intend  by  the 
letter  to  raise  a  confidence  that  the  agreement  should  be 
performed."*  It  is  difficult  to  discover  anything  in  the 
foregoing  correspondence  that  bears  the  semblance  of  a 
contract.  The  language  of  the  defendant  was  evasive  and 
non-committal,  and  showed  reluctance  rather  than  willing- 
ness to  assent  to  the  plaintiff's  proposition.  The  case  was 
afterward    disapproved.''      Where    the    conditions  of    sale 

gether  they  contain,  by  statement  or  reference,  all  the  essential  parts  of  the 
bargain  signed  by  the  party  to  be  charged,  or  his  agent.  Williams  v.  Bacon,  2 
Gray,  387  ;  Marsh  v.  Hyde,  3  lb.,  333.  But  when  the  memorandum  is  made  out 
from  several  papers,  they  m.ust  be  shown  upon  their  face  to  have  a  mutual  rela- 
tion to  each  other,  and  the  relation  cannot  be  established  by  extrinsic  evidence. 
Morton  v.  Dean,  13  Mete,  385  ;  Lemed  v.  Wannemacher,  9  Allen,  412.  County 
commissioners,  having  surveyed  and  platted  a  town  and  sold  the  lots,  agreed 
with  the  surveyor  that  he  should  take  two  lots  in  payment  for  his  services.  At 
the  sale,  two  lots  were  accordingly  marked  on  the  list  of  lots  as  sold  to  him,  an 
allowance  having  previously  been  made  for  his  services  corresponding  with  the 
price  of  the  lots,  which  allowance  the  surveyor  never  claimed.  Held,  that  these 
several  memorandums  were  sufficient  to  take  the  case  out  of  the  statute  of  frauds 
so  as  to  be  capable  of  specific  enforcement  in  equity.  Bourland  v.  County  of 
Peoria,  16  HI.,  538. 

'  Tawney  v.  Crowther,  3  Bro.  C.  C,  161,  318. 

*  By  Lords  Redesdale,  Cranworth,  and  Brougham.  Ridgway  v.  Wharton,  6 
House  of  Lds.,  265,  271,  293.   Acceptance  and  possession  of  the  contract  by  the 


§   232.         HOW  A  BINDING  AGREEMENT  MAY  BE  MADE.  3II 

signed  by  the  plaintiff  were  in  the  hands  of  the  defendants, 
whose  letters  expressly  referred  to  them,  it  was  held  that  no 
parol  evidence  was  necessary  to  connect  the  two,  and  that 
therefore  there  was  a  binding  contract/  And  where  A. 
wrote  to  B.,  offering  to  let  a  public  house  on  certain  terms, 
and  B.'s  clerk  had  an  interview  with  A.,  and  talked  over 
the  terms  of  the  lease,  and  afterward  B.  replied  that  he  was 
willing  to  take  the  premises  of  A.,  it  was  held  that  this  re- 
ferred to  the  terms  contained  in  A.'s  letter,  and  constituted 
a  contract."  A  letter  may  supply  something  material  omit- 
ted from  the  agreement.  Where  there  was  a  memorandum 
for  a  lease  signed  by  the  proposed  lessee,  but  without  the 
lessor's  name,  and  afterward  a  letter  written  by  the  former, 
withdrawing  the  memorandum,  but  mentioning  the  lessor, 
it  was  held  that  the  letter  supplied  the  omission  in  the 
agreement,  and  rendered  it  binding  under  the  statute.'  The 
contract  may,  of  course,  be  wholly  constituted  by  letters. 
This  is  very  often  the  case."  The  sending  by  the  plaintiff 
of  a  telegram  to  the  defendant,  and  mailing  a  letter  to  him 
on  the  same  day,  stating  that  he  had  telegraphed  accepting 


vendee,  and  payment  of  money  under  it,  are  proof  of  his  concurrence.  Johnson 
V.  Dodge,  17  111.,  433.  To  constitute  a  contract  in  writing  under  the  statute  of 
frauds,  a  written  offer  to  sell  real  estate  must  be  accepted  in  writing.  Lang  v. 
McLaughlin,  14  Minn.,  72.  But  a  verbal  acceptance  of  a  written  offer  to  sell 
personal  property,  is  sufficient  to  constitute  a  valid  agreement  on  which  to  charge 
the  person  by  whom  it  is  signed.     Sanborn  v.  Flagler,  9  Allen,  474. 

'  Dobell  V.  Hutchinson,  3  A.  &  E.,  355.  And  see  Saunderson  v.  Jackson,  2 
B.  &  P.,  238 ;  Jackson  v.  Lowe,  i  Bing.,  9, 

«  Wood  V.  Scarth,  2  K.  &  J.,  33. 

^  Warner  v.  Willington,  3  Drew,  523.  An  able  text-writer  questions,  very 
properly,  it  seems  to  us,  the  soundness  of  this  decision,  on  the  ground  that  the 
letter,  looked  at  as  a  whole,  affirmed  that  the  memorandum  was  a  mere  offer. 
Fry  on  Specif.  Perform.,  168,  169;  referring  to  cases  where  a  buyer  of  goods 
having  sent  a  letter  alluding  to  an  invoice  of  the  goods,  but  insisting  that  he  was 
not  bound  to  accept  the  goods,  it  has  been  held  that  there  was  no  sufficient 
argument  under  the  statute  of  frauds.  Cooper  v.  Smith,  15  East.,  103;  Richards 
V.  Porter,  6  B.  &  C,  437  ;  Dobell  v.  Hutchinson,  supra  ;  Gosbeli  v.  Archer,  2 
A.  &  E.,  590.  So,  where  the  buyer,  in  a  letter,  declined  to  accept  the  goods 
under  a  parol  agreement,  it  was  held  that  the  case  was  not  taken  out  of  the 
statute.  Goodman  v.  Griffiths,  26  L.  J;  Ex.,  145.  And  in  Wood  v.  Midgley,  5 
De  G.  M.  &  G.,  41,  46,  the  court  refused  to  entertain  the  proposition  advanced 
by  counsel  in  his  argument,  that  a  letter  declining  to  enter  into  an  agreement 
constituted  one. 

*  See  Western  v.  Russell,  3  V.  &  B.,  187. 


312  STATUTE    OF    FRAUDS.  §   233. 

his  proposition,  is  sufficient  evidence  of  subscription  to  take 
the  case  out  of  the  statute/ 

§  233.  What  to  be  shoivn  ivhcn  alleged  agreement  consists 
of  more  than  one  writing. — When  there  are  two  writings, 
one  containing  the  terms  of  the  contract,  and  the  other  the 
signature  and  referring  to  the  first,  the  paper  thus  referred 
to  may  be  identified  by  parol."  Unless,  however,  there  is  a 
direct  reference  in  one  writing  to  the  other,  so  as  in  effect 
to  embody  in  itself  the  paper  referred  to  without  the  aid 
of  parol  proof  to  effect  such  union,  they  cannot  be  con- 
sidered together.'  Proposals  had  been  issued  by  the  plain- 
tiff for  the  publication  of  a  large  number  of  prints  from 
some  of  the  scenes  in  Shakespeare's  plays,  upon  certain 
terms  and  conditions.  Printed  copies  of  the  prospectus  of 
the  publishers  were  lying  in  their  shop  for  general  inspec- 
tion, but  the  book  in  which  the  defendant  signed  his  name, 
had  only  for  its  title,  "  Shakespeare  subscribers,  their  sig- 
natures," without  any  reference  to  the  prospectus.  It  was 
held  that  as  parol  evidence  was  not  admissible  to  show 
their  connection,  the  defendant  was  not  liable."  In  another 
case,  application  was  made  by  a  tenant  to  the  solicitors  of 
his  landlord  for  a  renewal  of  his  lease.     The  solicitors  sent 

'  Trevor  v.  Wood,  36  N.  Y.,  307.  In  Indiana  the  statute.  Vol.  I.,  p.  612,  pro- 
vides, tliat  contracts  made  by  telegraph  "  shall  be  considered  as  contracts  in 
writing-."  Despatches  by  telegraph,  however,  between  the  parties,  are  insuf- 
ficient to  constitute  a  memorandum  when  they  only  show  the  terms  of  payment 
in  part,  and  a  direction  from  the  defendant  to  the  plaintiff  to  draw  up  a  contract 
accordingly,  but  do  not  otherwise  describe  or  refer  to  the  subject  of  the  contract ; 
and  the  deficiency  is  not  made  up  by  a  written  instrument  afterward  signed  by 
the  defendant,  describing  the  subject  matter,  which  instrument  is  void  as  a  con- 
tract on  account  of  its  having  been  executed  on  Sunday.  Hazard  v.  Day,  14 
Allen,  487. 

"Clinan  v.  Cooke,  \  Sch.  &  Lef.,  33;  Noale  v.  Buchanan,  11  Gill  &  Johns., 
314.  It  is  not  to  be  understood  that  any  other  rule  in  respect  to  the  competency 
of  parol  evidence  in  relation  to  contracts  within  the  statute  is  to  be  applied, 
than  such  as  are  applicable  to  written  agreements  in  general.  Tallmaii  v. 
Franklin,  supra  ;  S.  C.,  3  Duer,  395. 

"  Inhabs.  of  Freeport  v.  Bartol,  3  Me.,  340;  Carter  v.  Shorter,  57  Ala.,  253. 
Where  an  order  for  goods  is  drawn  in  duplicate,  and  one  copy  is  signed  by  the 
seller  and  delivered  to  the  purchaser,  and  the  other  copy  is  signed  by  the  pur- 
chaser and  delivered  to  the  seller,  the  two  papers  taken  together  constitute  a 
sufficient  memorandum  of  the  contract  under  the  statute  of  frauds.  Rhoades 
V.  Castner,  12  Allen,  130. 

*Bovdell  V,  Drummond,  II  East.,  142. 


§   233-       AGREEMENT    OF    MORE    THAN    ONE    WRITING.  313 

the  tenant  the  report  of  the  surveyor  recommending  that 
a  lease  be  given-  for  fourteen  years  at  a  specified  rent  if  cer- 
tain repairs  were  made  by  the  tenant.  The  tenant  wrote  in 
reply  assenting  to  the  repairs  and  rent,  but  asking  for  a 
lease  of  twenty-one  years.  Nothing  was  agreed  upon  at 
that  time  ;  but,  some  months  afterward,  a  negotiation  be- 
tween the  tenant  and  landlord  resulted  in  the  latter  writing 
to  the  tenant,  promising  him  a  lease  for  fourteen  years,  "  at 
the  rent  and  terms  agreed  upon"  ;  to  which  the  tenant  re- 
plied in  a  letter  of  acceptance.  It  was  held  that  parol 
evidence  was  admissible  to  connect  the  report  and  the  ten- 
ant's previous  letter  with  the  subsequent  letters  ;  that  as  it 
appeared  there  had  not  been  any  other  rent  and  terms 
agreed  upon  than  those  mentioned  in  the  report,  there  was 
a  sufficient  memorandum  in  writing  with  reference  to  the 
statute  of  frauds,  and  that  the  tenant  was  entitled  to  a  de- 
cree for  specific  performance.'  Where  a  writing  is  referred 
to,  the  reference  must  be  so  clear  as  to  prevent  the  possi- 
bility of  another  paper  being  substituted  for  it ; '  and  the 
instrument  referred  to  must  be  in  existence  when  the  con- 
tract is  signed.'  A  contract  of  sale  did  not  refer  to  any 
plan,  but  the  agents  who  signed  it  for  the  parties,  signed  at 
the  same  time  the  following  memorandum  written  on  a 
plan  of  the  property  :  "  Plan  of  property  sold  to  and  pur- 
chased by  D.,  23d  Oct.,  1874.  N.  B.  The  property  in- 
cluded in  the  purchase,  is  edged  with  red  color."  It  was 
held  that  the  plan  was  sufficiently  incorporated,  and  that 
the  description  in  the  contract  was  controlled  by  it."  An 
advertisement  to  which  no  reference  is  made  in  the  asrree- 
ment  cannot  be  introduced  to  supply  a  term.'  And  so  the 
mere  admission  in  writing  of  an  agreement,  without  ascer- 

'  Baumann  v.  James,  L.  R.  3,  Ch.  508. 

-  Smith  V.  Arnold,  5  Mason,  416;  Waul  v.   Kirkman,  27  Miss.,  323  ;    Stocker 
V.  Partridge,  2  Robertson,  193. 

'  Hyde  v.  Cooper,  13  Rich.  Eq.,  250. 

*  Drainage  Commrs.  v.  Dunkley,  L.  R.  4,  Ch.  D.  i. 

^Clinan  v.  Cooke,  i  Sch.  &  Lef.,  22. 


314  STATUTE    OF    FRAUDS.  §   234. 

taining  its  terms,  will  be  inoperative.'  The  statute  cannot 
be  complied  with  by  a  writing  which  refers  to  a  verbal 
agreement,  whether  that  agreement  is  subsisting  or  to  be 
made  afterward.'  Where  a  paper  duly  signed  did  not  refer 
to  a  writing,  but  to  the  terms  agreed  upon  by  parol,  it  was 
held  that  there  was  no  valid  contract." 

§  234.  What  essential  to  constitute  a  binding  agreement. 
— The  memorandum,  in  order  to  satisfy  the  statute,  must 
contain  the  substantial  terms  of  the  contract,  expressed 
with  such  certainty,  that  they  may  be  understood  without 
resorting  to  parol  evidence.*  "  The  jurisdiction  of  equity, 
in  specific  performance,  proceeds  on  the  supposition  that 
the  parties  have  not  only  agreed,  as  between  themselves, 
upon  every  material  matter,  but  that  the  matters  so  agreed 
on  are  of  such  a  nature,  and  the  subjects  of  agreement  so 
delineated  or  indicated,  either  directly,  or  by  reference  to 
something  else,  or  so  raised  to  view  by  legitimate  implica- 
tion, that  the  court  can  and  may  collect,  and  in  their  proper 
relations,  all  the  essential  elements,  and  proceed  intelli- 
gently and  practically  in  carrying  into  execution  the  very 
things  agreed  on  and  standing  to  be  performed."'     When 

'  Rose  V.  Cunynghame,  11  Ves.,  550;  Clerk  v.  Wright,  i  Atk.,  12. 

''■  Hyde  v.  Cooper,  supra. 

'  Ridgway  v.  Wharton,  3  De  G.  M.  &  G..  677  ;  S.  C,  6  House  of  Lds.,  238. 
An  imperfect  memorandum  cannot  be  aided  by  handbills  and  newspaper 
notices,  signed  by  the  defendant,  and  exhibited  by  him  at  the  time  of  the  sale, 
in  which  the  terms  of  sale  are  stated.     O'Donneli  v.  Leaman,  43  Me.,  158. 

*  Blagden  v.  Bradbear,  12  Ves.,  466;  Parkhurst  v.  Van  Cortlandt,  i  Johns. 
Ch.,  273  ;  Smith  v.  Stanton,  15  Vt.,  685;  Adams  v.  M'Millan,  7  Porter,  73  ; 
Abeel  v.  Radcliff,  13  Johns.,  297;  Calkins  v.  Falk,  39  Barb.,  620.  Where  on 
the  sale  of  a  church  pew  at  auction,  the  only  memorandum  was  an  entry  of  the 
auctioneer  on  a  chart  of  the  ground  floor  of  the  church,  of  the  name  of  the 
purchaser,  and  of  the  amount  bid  by  him,  it  was  held  insufficient.  First  Bap- 
tist Church  of  Ithaca  v.  Bigelow,  16  Wend.,  28.  And  see  Hinde  v.  Whitehouse, 
7  East.,  558.  An  agreement  to  convey  land  "  for  $2,500,  and  mortgage  to  re- 
main at  five  per  cent.,"  was  held  not  a  sufficient  memorandum.  Grace  v.  Deni- 
son,  114  Mass.,  16. 

"Graves,  C.  J.,  in  Blanchard  v.  Detroit,  etc.,  R.R.  Co.,  31  Mich.,  43.  Where 
a  memorandum  of  agreement  to  grant  a  lease  did  not  state  any  time  for  the 
commencement  of  the  lease,  it  was  construed  as  an  agreement  for  a  lease  to 
commence  immediately  from  the  date  of  the  agreement,  and  held  sufficient 
under  the  statute  of  frauds.  Jaques  v.  Millar,  L.  R.  6,  Ch.  D.  153.  Although 
the  memorandum  must  sho.v  who  are  the  parties  to  the  contract,  yet  this  may 
be  done  by  description,  and  parol  evidence  is  then  admissible  to  show  who  the 
person  described  is.     Mayer  v.  Adrian,  "]"]  N.  C,  83. 


§   234-       WHAT    CONSTITUTES    A    BINDING    AGREEMENT.  315 

the  writing  is  the  mere  basis  for  a  contract,  and  not  the  con- 
tract itself,  or  any  of  the  terms  remain  for  future  adjust- 
ment ;  or  where  the  matter  is  left  open,  and  one  party  may 
still  withdraw  from  it,  or  there  appears  to  be  an  intention 
to  negotiate  further,  there  is  no  binding  agreement.'  In  a 
suit  by  the  vendee  against  the  vendor  for  specific  perform- 
ance, the  only  agreement  proved  was  an  offer,  by  the  pur- 
chaser's solicitor,  of  twenty-five  thousand  pounds  for  cer- 
tain real  estate,  which  the  vendor's  agent  accepted,  "  sub- 
ject to  the  terms  of  a  contract  being  arranged  between  his 
(the  vendor's)  solicitor  and  yourself."  This  being  regarded 
as  a  mere  agreement  for  a  contract,  with  respect  to  which, 
although  some  terms  were  agreed  on,  the  rest  were  to  be 
settled  by  future  arrangement,  the  bill  was  dismissed."  The 
court  will  refuse  to  interfere  when  it  is  "  reasonably  doubt- 
ful whether  what  passed  was  only  treaty,  let  the  progress 
toward  the  confines  of  agreement  be  more  or  less.'"  A 
written  authority  by  the  owner  of  real  estate  to  a  broker  to 
sell  the  land  upon  the  terms  therein  mentioned,  subscribed 
by  the  owner,  and  an  agreement  to  accept  those  terms  writ- 
ten across  the  face  of  the  paper  in  the  hands  of  the  broker, 
and  subscribed  by  the  purchaser,  do  not  constitute  a  valid 
contract  for  the  sale  of  the  land  under  the  statute.'  A 
writing,  however,  duly  signed,  and  containing  all  the  terms 
agreed  upon,  will  constitute  a  binding  contract,  although  it 
appear,  from  the  paper,  that  it  was  intended  there  should 
be  drawn  up  a  more  formal  agreement.'  A.  wrote  to  B., 
"  I  offer  you  three  thousand  pounds  for  the  estate."  To 
which  B.  replied,   "  I  accept  your  offer,  and  if  you  approve 


'  Frost  V.  Moulton,  21  Beav.,  596;  Wood  v.  Midgley,  5  De  G.  M.  &  G.,  41  ; 
Lord  Glengal  v.  Barnard,  i  Ke.,  769;  Tawney  v.  Crowther,  3  Bro.  C.  C,  318; 
Stratford  v.  Bosworth,  2  V.  &  B.,  341. 

■■'  Honeynian  v.  Marryat,  21  Beav.,  4  ;  S.  C,  6  House  of  Lds.,  112, 

3  Lord  Eldon,  in  Huddlestone  v.  Briscoe,  11  Yes.,  592. 

*  Haydock  v.  Stow,  40  N.  Y.,  363.  It  is  a  mere  power  of  attorney  from  the 
owner  to  the  broker,  capable  of  being  revoked. 

'  Fowle  V.  Freeman,  9  Ves.,  351.  And  see  Ridgway  v.  Wharton,  6  House  of 
Lds.,  264;  Thomas  v.  Bering,  i  Ke.,  741  ;  Cowley  v.  Watts,  17  Jur.,  172. 


3l6  STATUTE    OF    FRAUDS.  §   235. 

of  the  inclosed,  sign  the  same,  and  I  will,  on  receipt  of  the 
deposit,  sign  you  a  copy."  The  inclosure  was  not  pro- 
duced. It  was  held  that  there  was  a  binding  contract,  and 
that  the  inclosure  was  a  mere  means  of  carrying  the  agree- 
ment into  effect."  So,  a  correspondence  about  the  taking 
of  a  house,  was  held  to  constitute  a  sufficient  agreement, 
though  the  party  to  whom  the  proposition  was  made,  ac- 
cepted it  thus:  "These  terms  I  have  submitted  to  Mrs.  S. 
and  I  am  authorized  to  say  that  they  are  accepted,  and  that 
her  solicitor  will  draw  up  a  proper  agreement  for  signature, 
which  I  will  forward  to  you.'"  But  when  a  term  is  to  be 
introduced  into  the  formal  agreement  which  is  not  con- 
tained in  the  previous  one,  the  latter  will  not  be  binding. 
And  when  a  writing  does  riot  conclusively  appear  to  con- 
stitute the  final  arrangement  between  the  parties,  the  fact 
that  they  intended  a  subsequent  more  formal  agreement 
will  afford  a  strong  presumption  that  the  previous  negotia- 
tions were  not  designed  to  be  regarded  as  a  contract.' 

§  235.  Agreement  by  receipt  or  letters. — A  receipt 
signed  by  the  vendor  of  real  estate  for  part  of  the  purchase 
money  may  constitute  a  sufficient  memorandum  of  sale.* 
It  must,  however,  describe  the  land  sold,  and  state  the 
price.'     A  paper  purporting  on  its  face  to  be  a  receipt  for 

'  Gibbins  v.  Northeastern  Dist.  Asylum,  11  Beav.,  i, 

«  Skinner  v.  M'Douall,  2  DeG.  &  Sm.,  265. 

•^  RidgAvay  v.  Wharton,  supra  ;  Fry  on  Specif.  Perform.,  160.  A  memoran- 
dum of  an  agreement  for  a  lease  must  specify  the  term  for  which  the  lease  is  to 
be  given.     Hodges  v.  Howard,  5  R.  I.,  149. 

"  Westervelt  v.  Matheson,  i  Hoffm.  Ch.,  36. 

"  Barickman  v.  Kuykendall,  6  Blackf.,  21  ;  Ellis  v.  Deadman,  4  Bibb.,  466  ; 
Soles  V.  Hickman,  20  Fa.  St  ,  180.  Although  the  price  to  be  paid  must  in  gen- 
eral be  shown  by  the  contract,  and  cannot  be  supplied  by  parol,  yet  when  it 
appears  from  the  agreement  that  the  consideration  has  already  been  paid,  the 
amount  need  not  be  stated  (Holman  v.  Bank  of  Norfolk,  12  Ala.,  369  ;  Fugate 
v.. Hansford,  3  Litt.,  262)  ;  there  being  in  such  case  nothin:^  to  be  supplied  by 
parol.  It  is  sufficient  if  the  memorandum  state  that  the  price  is  to  be  referred 
to  the  arbitration  of  a  third  person  to  determine  the  value  of  the  thing  sold. 
Brown  v.  Bellows,  4  Pick.,  178.  At  law,  when  a  credit  is  given,  it  must  be 
stated  in  the  memorandum.  Wright  v.  Weeks,  3  Bosw.,  372.  In  the  following 
States  the  statute  provides  that  the  consideration  need  not  be  expressed  in  the 
writing:  Illinois,  Sts.  of  1874,  ^o'-  3.  P-  210,  Sees,  i,  2  ;  Indiana,  Sts.  Ch.  66, 
Sec.  I  ;  Kentucky,  Rev.  Sts.,  Ch.  22,  Sec.  i  ;  Maine,  Rev.  Sts.,  Ch.  iii,  Sec.  i  ; 
Massachusetts,  Gen.  Sis.  1873,  Ch.  105,  Sec.  2;  Michigan,  Comp.  Laws,  1871 


§   235-  AGREEMENT    BY    RECEIPT    OR    LETTERS.  317 

purchase  money,  but  inadmissible  as  evidence  of  the  pay- 
ment of  the  money  for  lack  of  a  stamp,  may  nevertheless  be 
a  sufficient  memorandum  of  the  contract  of  sale  to  take 
the  case  out  of  the  statute  of  frauds/  In  order  to  take  an 
agreement  out  of  the  statute  by  letters,  all  of  the  terms  of 
the  agreement  must  be  assented  to  on  both  sides."  The 
owner  of  land  wrote  to  his  agent  that  he  would  sell  it  for 
a  certain  sum,  and  a  person  said  he  would  buy  it  at  that 
price.  It  was  held  insufficient  to  take  the  case  out  of  the 
operation  of  the  statute  of  frauds ;  the  delivery  .of  the 
letter  to  the  agent  having  no  greater  effect  than  if  it  had 
been  retained  in  the  possession  of  the  owner  of  the  prop- 
erty.' A  correspondence  by  letters  which  reasonably  im- 
ports a  conclusion  is  sufficient.*  A  man,  having  driven 
from  his  house  without  provocation,  his  wife  and  daughter, 
several  years  afterward  invited  the  daughter  by  letter  to 
return  and  live  with  him,  promising  to  leave  her  his 
property.  The  daughter,  with  the  consent  of  her  mother, 
accepted  the  invitation ;  but,  shortly  after,  was  again 
compelled  to  leave  her  father's  house  upon  a  charge  of 
disobedience ;  and  he  subsequently  devised  his  property  to 
strangers.  It  was  held  that  the  letter  constituted  a  valid 
contract,  which  a  court  of  equity  would  enforce  against 
the  executors  and  devisees.'  Of  course,  when  a  person 
writes  to  another  offering  to  sell  real  estate  on  the  terms 
therein  specified,  which  offer  the  other  immediately  accepts 
by  letter,  there  is  a  valid  and  binding  agreement  between 
the  parties  which  a  court  of  equity  will  enforce.^  But 
although  a  valid  contract  may  be  made  by  correspondence, 
yet  "  care  should   always  be  taken  not  to  construe,  as  an 

Ch.  166,  Sec.  9;  Nebraska,  Sts.  1873,  Ch.  25,  Sec.  24;  Virginia,  Code  1849, 
Ch.  143,  Sec.  I  ;  West  Virginia,  Code,  Ch.  98,  Sec.  i. 

'  Evans  v.  Prothero,  13  Eng.  L.  &  Eq.,  163. 

2  Nesham  v.  Selby,  L.  R.  13,  Eq.  191  ;  Affd.  L.  R.  7,  Ch.  406. 

*  Steel  V.  Fife,  48  Iowa,  99. 

*  Huddlestone  v.  Briscoe,    11  Ves.,   591  ;  Stratford  v.  Bosworth,   2  V.  &  B., 
341  ;  Johnson  v.  Ronald,  4  Munf.,  'j']. 

'  Gray  v.  James,  4  Dessaus  Eq.,  185.  '  Matteson  v.  Scofield,  27  Wis.,  671. 


3l8  STATUTE    OF    FRAUDS.  §   236. 

agreement,  letters  which  the  parties  intended  only  as  a 
preliminary  negotiation.  The  question  in  such  cases  always 
is,  did  they  mean  to  contract  by  their  correspondence,  or 
were  they  only  settling  the  terms  of  an  agreement  into 
which  they  proposed  to  enter  after  all  its  particulars  were 
adjusted,  which  was  then  to  be  formally  drawn  up,  and  by 
which  alone  they  designed  to  be  bound?"  '  S.  wrote  to  C, 
proposing  to  sell  him  certain  land  at  a  price  stated.  C.  re- 
plied by  letter  as  follows  :  "  After  considering  your  propo- 
sition, I  have  come  to  the  conclusion  that  I  will  take  your 
place  if  there  is  nothing  else  against  it  save  what  you  have 
shown  me.  So  soon  as  Mr.  O.  signs  the  deed  of  waiver 
of  his  equity  of  redemption,  let  me  know,  and  I  will  come 
over.  It  seems  that  it  is  almost  impossible  for  us  all  to 
meet  at  once.  Write  me  by  mail."  Held  not  a  sufficient 
memorandum  under  the  statute  of  frauds.'  Where  nego- 
tiations were  had  between  the  paities  with  a  view  to  an 
agreement,  but  it  was  doubtful  whether  there  was  ever  a 
distinct  understanding  on  the  subject,  and  the  only  written 
evidence  of  the  agreement  relied  on  was  a  supposed  letter 
written  by  the  defendant  to  the  plaintiff  alleged  to  have 
been  lost,  it  was  held  that  the  proof  was  insufficient  to  take 
the  case  out  of  the  statute.' 

§  236,  Ins7ifficient  description  of  S2ibject  matter. — The 
memorandum  of  a  contract  for  the  sale  and  purchase  of 
real  estate  must  clearly  indicate  the  property,  and  nothing 
remain  to  be  done  in  which  the  concurrence  of  both  parties 
is  necessary  to  ascertain  the  location  or  quantity  of  the  land 
to  be  conveyed.*     The  memorandum  in  the  following  cases 

•  Lyman  v.  Robinson,  14  Allen,  242,  per  Foster,  J. 

-  Carter  v.  Shorter,  57  Ala.,  253. 

'  Ballinjjall  v.  Bradley,  16  111.,  374.  A  letter  written  by  the  buyer  to  the 
seller  alluding  to  lumber  bought  and  to  be  delivered,  but  not  stating  the  con- 
tract, price,  quantity,  quality,  time,  or  place,  is  not  a  sufficient  memorandum. 
Waterman  v.  Meigs,  4  Cush.,  497. 

^  Parker  v.  Bodley,  4  Bibb.,  102  ;  Force  v.  Dutchcr,  18  N.  J.  Eq.,  401  ;  Cam- 
den &  Amboy  R.R.  Co.  v.  Stewart,  Ibid,  489;  Hudson  v.  King.  2  Heisk,  560; 
McGuire  v.  Stevens,  42  Miss.,  724;  Whelan  v.  Sullivan,  102  >Iass.,  204;  Fer- 
guson V.  Staver,  33  Pa.  St.,  411.     No  more  particular  description  is  necessary 


§   236.    INSUFFICIENT  DESCRIPTION  OF  SUBJECT  MATTER.       319 

was  wholly  indefinite,  and  therefore  insufficient  :  "  New 
Orleans,  June  25th,  1870.  Received  from  Mr.  Holmes,  one 
hundred  dollars,  as  part  payment  on  a  piece  of  property  on 
the  corner  of  Main  and  Pearl  Streets,  City  of  Natchez, 
County  of  Adams,  State  of  Miss.  Eliza  Evans"  ;'  "Bought 
of  Wm.  R.  James,  an  ice  house  and  lot,  $140"  ;'  "The  tract 
of  land  to  Wm.  Meadows,  at  $5.48,"  entered  by  an  auctioneer 
in  his  book  of  sales  ;'  "  Fifty  dollars,  and  the  lot  to  build 
on,"  written  in  a  subscription  paper  circulated  to  raise  money 
to  build  a  church  ;'  an  order  sent  by  the  vendor  of  land  to 
his  attorney,  "  Sir  :  Be  so  good  as  to  make  James  Kay  a 
deed  to  the  sixty-four  acres  of  land  that  is  laid  down  in  your 
plat,  and  I  will  see  you  shortly,  to  make  the  other  deeds"  ;" 
"This  is  to  certify,  that  I  have  sold  to  Chas.  Hazard,  this 
twenty-eighth  day  of  May,  1852,  a  certain  lot  of  land,  con- 
taining about  eleven  acres,  to  be  measured,  for  nine  hundred 
dollars  an  acre.  I  to  have  the  present  crop.  One-half  of 
the  purchase  money  to  be  paid  in  fall  of  1852.  The  bal- 
ance to  be  paid  on  the  25th  of  March,  1853.  The  deed  to 
be  given  on  the  first  day  of  September,  and  sooner,  if  I 
should  require  it.  That  is  to  say,  one-half  of  the  purchase 
money  to  be  paid  at  the  time  of  the  delivery  of  the  deed, 
May  28,  1852  "  ;'  "  Received  of  John  W.  Stamps,  six  hun- 
dred dollars  in  part  payment  of  one  undivided  tract  of  land 
known  as  the  Roberts  tract,  bounded,  etc.  (stating  the 
boundaries).  The  payments  were  made,  four  hundred  dol- 
lars on  the  15th  of  May,  1849,  ^^^^  ^^^^  hundred  and  fifty 
dollars  20th  of  June,  1849,  ^"^^  fifty,  the  20th  of  August, 
1849,  niaking  six  hundred  dollars  in  all.  The  tract  con- 
tained   three    hundred   and   thirty  acres ;  cost  five   dollars 

under  the  statute  of  frauds  in  a  contract  for  the  sale  of  real  estate,  than  in  one 
relating  to  personal  property.  In  each,  to  constitute  a  bargain  and  sale,  or  a  con- 
tract which  will  be  specifically  enforced  in  equity,  the  subject  matter  thereof  must 
be  identified.     Foster,  J.,  in  Hurley  v.  Brown,  98  Mass.,  545. 

'  Holmes  v.  Evans,  48  Miss.,  247.  -  Pipkin  v.  James,  i  Humph.,  325. 

3  Meadows  v.  Meadows,  3  McCord,  458. 

*  Church  of  the  Advent  v.  Farrow,  7  Rich  Eq.,  378. 

'  Kay  V.  Curd,  6  B.  Mon.,  100.  ^  Ives  v.  Armstrong,  5  R.  I.,  567. 


320  STATUTE    OF    FRAUDS.  §  237. 

and  six  cents  per  acre,  this  28th  of  Sept.,  1849.  James  M. 
Sheid.'"  A.  and  B.  being  tenants  in  common  of  a  tract  of 
land,  A.  made  a  verbal  sale  of  his  interest  in  one  hundred 
and  fifty  acres  of  it  to  C,  and  subsequently  sold  and  con- 
veyed the  remainder  of  his  interest  to  B.,  "  saving  and  re- 
serving a  certain  tract  sold  by  the  said  A.  to  C,  within  said 
grant,  supposed  to  contain  about  one  hundred  and  fifty 
acres  ;  and  the  undivided  interest,  title,  and  claim  of  the  said 

B.  in  and  to  said  tract  sold  to  said  C,  forms  a  further  con- 
sideration, and  said  contract  is  hereby  affirmed  for  the  bene- 
fit of  said  A."  It  was  held  that  as  the  reservation  did  not 
purport  to  set  out  the  contract  between  A.  and  C,  or  de- 
scribe the  land  sold  to  him,  there  was  no  sufficient  memo- 
randum to  take  the  contract  out  of  the  statute  of  frauds.'' 

§  237.  Sufficient  description. — A  contract  for  the  sale 
of  real  estate  is  valid,  which  is  sufficiently  descriptive  of 
the  land  to  enable  a  surveyor  to  locate  it.'  A  receipt  for 
money  "  in  part  payment  for  the  tract  of  land  that  I  was 
interested  in,  and  sold  by  the  sheriff,  and  purchased  by  Col. 

C.  L.  Goodwin,  and  which  land  was  sold  by  C.  L.  Good- 
win to  Benjamin  Hatcher,"  constitutes  a  sufficient  memo- 

*  Sheid  V.  Stamps,  2  Sneed,  172.  A  memorandum  of  purchase  which  simply 
states  the  amount  agreed  to  be  paid,  and  the  terms  of  payment,  for  "  the  whole 
property,  from  cellar  to  top,  including  lease,  press,  boiler  and  engine,  type,  fix- 
tures, furniture,  etc.,"  is  insufficient  to  take  the  contract  out  of  the  statute  of 
frauds.    Farwell  v.  Mather,  10  Allen,  322.    But  see  Little  v.  Pearson,  7  Pick.,  301. 

^  Wright  V.  Cobb,  5  Sneed,  143.  A  written  offer  made  to  another,  and  accepted 
by  him,  to  sell  "  all  that  piece  of  property  known  as  the  Union  Hotel  property," 
is  not  a  sufficient  description  of  the  real  estate  offered  for  sale.  King  v.  Wood, 
7  Mo.,  389.  In  a  suit  for  the  specific  performance  of  a  contract  for  the  sale  and 
purchase  of  a  lot  of  land,  the  plaintiff  relied  upon  the  following  copy  of  an  account 
taken  from  the  books  of  H.  C.  Owens  :  "  1841.  William  Plummer  to  H.  C.  Owens, 
Dr.,  to  4  loads  of  rock,  one  lot  at  one  year's  credit,  125."  The  account  then  pro- 
ceeded to  charge  for  the  erection  of  a  house,  and  for  building  materials.  Held, 
too  vague  and  uncertain,  to  take  the  case  out  of  the  statute.  Plummer  v.  Owens, 
Busbee  Eq.,  254.  The  following  receipt,  purporting  to  contain  a  statement  of 
the  terms  of  the  purchase  of  real  estate  by  Burnham  &  Clark,  was  held  a  suffi- 
cient memorandum  of  sale  :  "  Ellsworth,  Dec.  1 5,  1834.  Received  of  Daniel  Burn- 
ham  and  Cyrus  S.  Clark,  one  thousand  dollars,  to  be  accounted  for  if  they  shall 
furnish  ne  satisfactory  security  for  certain  lands  on  the  Naraguagus  river,  say, 
one  hundred  and  nineteen  thousand  acres,  for  one  hundred  and  thirteen  thou- 
sand dollars,  on  or  before  Friday  morning  next,  otherwise  to  be  forfeited.  John 
Black."     Clark  v.  Burnham,  2  Story,  i, 

3  White  v.  Hermann,  51  111.,  243;  Wiley  v.  Robert,  27  Mo.,  388;  Boardman  v. 
Ford,  6  Pet.,  345  ;  Hooper  v.  Laney,  39  Ala.,  338. 


§   238.  IDENTIFICATION    OF    SUBJECT    OF    SALE.  32 1 

randum  of  the  agrement.'  So  of  a  letter  written  by  the 
owner  of  land,  to  another,  saying  that  he  had  agreed  with 
a  third  person  to  sell  the  latter  the  land,  setting  forth  the 
terms  of  the  contract  and  the  consideration,  and  describing 
the  property  sold,  as  *'the  land  now  claimed  by  me"  (the 
writer  of  the  letter),  "on  Dry  Creek,  some  two  hundred 
acres  of  bottom  land,  and  seven  hundred  acres  of  up- 
land."* So  of  a  receipt  for  the  purchase  money,  signed 
by  the  vendor,  describing  the  property  sold  as  "  the  tract 
of  land  whereon  I  live,  known  as  the  William  Wynn 
farm.'"'  Also  of  a  memorandum  of  sale  describing  the 
property  agreed  to  be  conveyed,  as  the  vendor's  house 
and  lot  ''  north  of  Kinston " ;  it  being  admitted  by  the 
defendant  in  her  answer,  that  she  owned  but  one  house 
and  lot  in  the  county.*  A  note  addressed  by  the  owner 
to  his  agent,  stating  that  a  person  named,  had  that  day 
called  on  the  owner,  and  "  agreed  to  take  the  pasture  lot " 
for  a  sum  specified,  naming  the  terms  of  payment,  ac- 
knowledging the  receipt  of  twenty  dollars  "on  the  above 
contract,"  and  concluding  with,  "  make  the  papers,  and  I 
will  pay  your  commissions,"  was  held  a  sufficient  memo- 
randum of  the  contract  of  sale.^  And  the  same  was 
held  of  a  contract  as  follows  :  "  I  will  give  John  Simpson 
one  hundred  acres  of  the  land  next  to  either  Stukely,  or 
Newell,  for  $450 ;  or  I  will  give  him  the  two  hundred 
acres,  with  a  clear  title,  for  his  house  and  lot.  Wm.  S. 
Rankin."  ° 

§  238.  Identification  of  subject  of  sale. — Parol  evidence 
can  only  be  resorted  to,  to  show  the  locality  of  the  land  con- 

'  Hatcher  v.  Hatcher,  i  McMullan  Eq.,  311.     *  Moss  v.  Anderson,  44  Cal.,  3. 
^  Simmons  v.  Spruill,  3  Jones  Eq.,  9. 

*  Phillips  V.  Hooker,  Phil.  N.  C.  Eq.,  193.  And  see  Atwood  v.  Cobb,  16  Pick.,  227. 
Where  a  vendor  signed  the  following:  "Mem.  28th  of  May,  1852.  I  agree  to 
sell  R.  H.  Ives  the  Peckham  farm,  now  owned  and  occupied  by  me,  say,  about 
45  acres,  in  Newport,  for  fifteen  thousand  dollars  (15,000)  payable  the  25th  of 
March,  when  possession  is  to  be  given,  he,  R.  H.  I.,  paying  the  annuity  for  De- 
cember, 1852,"  it  was  held  sufficient  to  support  a  bill  for  specific  performance, 
Ives  V.  Hazard,  4  R.  I.,  14. 

*  Spangler  v.  Danforth,  65  III,  1 52.    '  Simpson  v.  Breckenridge,  32  Pa.  St.,  2S7. 

21 


322  STATUTE    OF    FRAUDS.  §   238. 

tracted  to  be  sold,  when  the  memorandum  refers  to  some- 
thing extrinsic  by  which  the  land  can  be  identified ;  as 
where  receipts  given  by  the  vendor  to  the  vendee  for  the 
purchase  money,  stated  that  the  money  paid  was  for  "  the 
Fleming  farm  on  French  Creek " ; '  but  describing  the 
property  sold  as  a  house  and  lot  in  a  town  named  would 
be  wholly  vague  and  indeterminate."  On  the  other  hand, 
a  written  agreement  to  sell  a  house  "  on  Church  Street "  is 
sufficient,  and  parol  evidence  is  admissible  to  identify  it.' 
Where  the  writing  was  an  agreement  to  sell  "a  house  and 
lot  on  Amity  Street,"  and  there  were  several  such,  parol 
evidence  was  received  to  show  that  there  was  only  one 
house  and  lot  which  the  defendant  had  a  right  to  convey, 
and  that  the  parties  had  been  in  treaty  for  the  sale  and  pur- 
chase of  it.'  Such  a  case  "is  not  a  question  of  the  suffi- 
ciency of  the  writing  under  the  statute  of  frauds,  so  much 
as  it  is  the  right  to  resort  to  parol  evidence  in  aid  of  the 
writing  where  an  ambiguity  exists  in  respect  to  the  prop- 
erty intended  to  be  sold,  or  to  which  the  contract  relates. 
The  most  specific  and  precise  description  of  the  property 
intended  requires  some  parol  proof  to  complete  the  identi- 
fication. A  more  general  description  requires  more. 
When  all  the  circumstances  of  possession,  ownership,  situ- 
ation of  the  parties,  and  their  relation  to  each  other  and  to 
the  property,  as  they  were  when  the  negotiation  took  place, 
and  the  writing  was  made,  are  disclosed,  if  the  meaning  and 
application  of  the  writing,  read  in  the  light  of  those  circum- 
stances, are  certain  and  plain,  the  parties  will  be  bound  by 
it  as  a  sufficient  written  contract  or  memorandum  of  their 
agreement." '  On  this  principle,  where  the  terms  employed 
in  the  memorandum  of  a  contract  for  the  sale  of  goods  are 
technical  or  equivocal  on  the  face  of  the  instrument,  or 
made  so  by  reference  to  extraneous  circumstances,  parol 

'  Ross  V.  Parker,  72  Pa.  St.,  186.         *  Murdock  v.  Anderson,  4  Jones  Eq.,  ^^. 
*  Mead  v.  Parker,  115  Mass.,  413.  ■*  Hurley  v.  Brown,  98  Mass.,  545. 

'  Ibid,  per  Wells,  J. 


§  239- 


BY    WHOM    AGREEMENT    TO    BE    SIGNED.  32^ 


evidence  of  the  usage  and  practice  in  the  trade  is  admissi- 
ble to  explain  the  meaning/ 

§  239.  By  wJiom  agreement  to  be  signed. — With  regard 
to  the  execution  of  the  memorandum,  where  the  statute 
provides  that  it  shall  be  signed  by  the  party  to  be  charged, 
it  is  sufficient  that  it  contain  the  signature  of  the  person 
against  whom  it  it  sought  to  be  enforced,  or  of  his  agent ; 
while,  in  those  States  in  which  the  WTiting  is  required  to 
be  subscribed  by  the  party  or  his  agent  making  the  lease  or 
sale,  his  signature   is   indispensable."      In  New  York   the 

'  Salmon  Falls  Manuf.  Co.  v.  Goddard,  14  How.,  446.  Where  the  only  mem- 
orandum of  a  sale  was  a  credit  in  the  words,  "  By  my  purchase  of  your  half  of 
E.  B.  wharf  and  premises  this  day  between  us,  $7,578.63,"  which  were  con- 
tained in  a  stated  account  between  the  parties,  and  in  the  handwriting-  of  the 
defendant,  whose  name  appeared  only  at  the  top  of  the  account  so  stated,  and 
which  showed  a  balance  due  the  complainant,  it  was  held  to  be  sufficient  to 
take  the  case  out  ot  the  statute  ;  and  that  the  particular  estate  designed  by  the 
words,  "  Your  half  E.  B.  wharf  and  premises,"  might  be  shown  by  other  evi- 
dence.    Barry  v.  Coombe,  i  Pet.,  640. 

2  Hatton  V.  Gray,  5  Yin.  Abn,  525 ;  PI.  4,  S.  C.  2  Cas.  in  Ch.  164 ;  Buckhouse 
V.  Crosby,  2  Eq.  Cas.  Abr.  32,  PL  44 ;  Egerton  v.  Mathews,  6  East.,  307  ;  Allen 
V.  Bennet,  3  Taunt.,  169;  Laythoarp  v.  Bryant,  2  Bing.  N.  C,  735  ;  Farwell  v. 
Lowther,  18  111.,  252;  Ivory  v.  Murphy,  36  Mo.,  534;  Smith  &  Fleck's  Appeal, 
69  Pa.  St.,  474;  Perkins  v.  Hadsell,  50  111.,  216;  Estes  v.  Fuilong,  59  lb.,  298; 
Barstow  v.  Gray,  3  Me.,  409 ;  Getchell  v.  Jewett,  4  lb.,  350 ;  Morin  v.  Martz, 
13  Minn.,  198;  Douglass  v.  Spears,  2  Nott  &  McCord,  207;  Old  Colony  R.R. 
Corp.  V.  Evans,  6  Gray,  25  ;  Fenly  v.  Stewart,  5  Sandf ,  401  ;  Justice  v.  Lang, 
42  N.  v.,  493;  S.  C,  52  lb.,  323;  Worrall  v.  Munn,  5  lb.,  229;  Bleecker  v. 
Franklin,  2  E.  D.  Sinith,  393  ;  Van  Sault  v.  Edwards,  43  Cal.,  458  ;  Rutenberg 
V.  Main,  47  lb.,  213 ;  Lowry  v.  Mehaffy,  10  Watts,  387  ;  Tripp  v.  Bishop,  56  Pa. 
St.,  424;  Slater  v.  Smith,  117  Mass.,  96;  Woodward  v.  Aspinwall,  3  Sandf, 
272;  McCrea  v.  Purmort,  16  Wend.,  460;  Shirley  v.  Shirley,  7  Blackf,  452; 
Cabot  v.  Cabot,  3  Pick.,  83  ;  Ives  v.  Hazard,  4  R.  I.,  14.  In  Pennsylvania  it  is 
only  the  lessor  or  grantor  who  is  required  to  sign  the  agreement.  His  contract 
must  be  in  writing  and  signed  by  him,  but  the  statute  requires  no  written  evi- 
dence of  the  engagement  of  a  lessee  or  grantee.  The  statute  of  frauds  in  that 
State  was  passed  for  the  protection  of  land-owners,  to  guard  them  against  per- 
juries in  the  proof  of  parol  contracts.  To  secure  this  protection  it  prescribed  a 
rule  of  evidence  by  which  alone  their  estates  can  be  diverted.  Lowry  v.  Me- 
haffy, j/z/r^;  /  McFarson's  Appeal,  11  Pa.  St.,  503;  Tripp  v.  Bishop,  56  lb., 
424,  per  Strong,  J.;  Parish  v.  Koons,  Parson's  Sel.  Eq.  Cas.,  78.  The  per- 
mitting of  a  contract  to  be  enforced,  which  is  signed  by  one  of  the  parties  only, 
has  been  objected  to  by  eminent  judges.  In  Clason  v.  Bailey,  14  Johns.,  489, 
Chancellor  Kent  said  :  "  I  have  thought,  and  have  often  intimated,  that  the 
weight  of  argument  was  in  favor  of  the  construction  that  an  agreement  concern- 
ing lands,  to  be  enforced  in  equity,  should  be  mutually  binding ;  and  that  the  one 
party  should  not  be  at  liberty  to  enforce  at  his  pleasure  an  agreement  which  the 
other  party  was  not  entitled  to  claim  ;  but,  notwithstanding  the  objection,  it  ap- 
pears from  the  review  of  the  cases,  that  the  point  is  too  well  settled  to  be  now 
questioned."  And  see  Wilson  v.  Clark,  i  Watts  &  Serg.,  55/].  The  ground 
upon  which  courts  of  equity  proceed  in  such  cases  is,  that  as  the  statute  of 
frauds  requires  only  the  signature  of  the  party  to  be  charged  to  become  legally 


324  STATUTE    OF    FRAUDS.  §   24O. 

former  statute  of  frauds  only  required  contracts  for  the  sale 
of  land  to  be  signed  by  the  party  who  was  attempted  to  be 
charged  upon  the  contract.  Hence,  the  question  frequently 
arose,  whether  the  purchaser  could  not  be  charged  upon  his 
contract,  although  such  contract  was  not  signed  by  the  ven- 
dor so  as  to  make  it  legally  binding  upon  him.  But  no 
such  question  can  arise  upon  the  present  statute  ;  the  ven- 
dee who  has  signed  the  contract,  not  being  liable  thereon, 
unless  it  has  been  properly  executed  by  the  vendor  or  his 
agent'  The  statute  in  Michigan,  Minnesota,  Nebraska, 
and  Wisconsin  is  the  same  in  this  respect  as  the  existing 
New  York  statute.' 

§  240.  Hozv  signattire  to  be  made. — The  statute  of  Chas. 
II.  provides  that  the  memorandum,  or  note,  shall  be 
''signed^''  and  this  language  is  used  in  the  statute  of  the 
following  States :  Arkansas,'  Illinois,'  Iowa,"  Kentucky,* 
Massachusetts,'  Missouri,'  Nebraska,"  New  Hampshire,'" 
New  Jersey,"  North  Carolina,'"  Ohio,"  Rhode  Island,"  Ten- 


binding  upon  him,  equity  finding' a  contract  legally  binding,  will  decree  its  per- 
formance. Rogers  v.  Saunders,  16  Me.,  92;  Sams  \'.  Fripp,  10  Rich.  Eq. ,  447. 
A  court  of  equity  frequently  refuses  to  decree  the  specific  performance  of  a  con- 
tract which  is  signed  by  only  one  of  the  parties,  because  the  want  of  mutuality 
"  often  constitutes  an  equitable  ground  for  such  refusal,  as  if  the  party  not  sign- 
ing the  agreement,  and  therefore  not  legally  bound,  takes  advantage  of  his  posi- 
tion, and  delays  its  fulfilment  till  it  is  ascertained  whether  the  bargain  is  advan- 
tageous to  him."  Young  v.  Paul,  20  N.  J.  £q.,  401,  per  Williamson,  Ch.  The 
acceptance  of  a  deed,  which  in  terms  provides  that  the  grantee  shall  pay  off  a 
certain  incumbrance,  is  an  undertaking  by  the  grantee  to  pay  the  incumbrance. 
The  acceptance  of  the  deed  makes  it  a  contract  in  writing  binding  upon  the 
grantee,  just  as  the  acceptance  by  a  lessee  of  a  lease  in  writing  s'gned  only  by 
the  lessor  makes  it  a  written  contract  binding  upon  such  lessee  ;  and  a  suit  can 
be  instituted  on  it,  and  the  same  rights  be  maintained,  as  though  it  were  also 
signed  by  the  grantee.     Schumaker  v.  Sibert,  18  Kansas,  104. 

^  Townsend  v.  Hubbard,  4  Hill,  351  ;  McWhorter  v.  McMahan,  10  Paige 
Ch.,  386. 

-  Comp.  Laws  of  Mich.,  Vol.  2,  P.  1455,  Ch.  166,  Sec.  8  ;  Sts.  of  Minn.,  Vol. 
I,  P.  692,  Sec.  12 ;  Sts.  of  Neb.,  P.  392,  Ch.  25,  Sec.  5 ;  Sts.  of  Wis.,  Vol.  2,  P. 
1254,  Ch.  106,  Sec.  8. 

»  Sts.,  Ch.  73,  Sec.  I.  •  "Sts.,  Ed.  of  1874,  Vol.  3,  P.  210. 

*  Code  of  1873,  Sec.  3663.  '  Rev.  Sts.,  Ch.  22,  Sec.  i. 

'  Rev.  Sts.,  Ch.  105,  Sec.  i.  *  Sts.  of  1870,  Ch.  62,  Sec.  5. 

"  Sts.  of  1873,  Ch.  25,  Sec.  5.  '"  Sts.  of  1867,  Ch.  201,  Sec  12. 

"  Nixon's  Dig.,  4th  Ed.,  p.  358,  Sec.  4.     '-  Code  Ch.,  50,  Sec.  11. 

'3  Rev.  Sts.,  Ed.  of  1870,  Ch.  47,  Sec.  5.    '*  Sts.  of  1872,  Ch.  193,  Sec.  8. 


§   240.  now    SIGNATURE    TO    BE    MADE.  325 

nessee/  Texas,'  Vermont/  Virginia/  and  West  Virginia/ 
With  reference  to  the  place  and  character  of  the  signature, 
the  person  to.  be  charged  may  insert  his  name  in  any  part 
of  the  paper — at  the  top,  in  the  middle,  or  at  the  bottom  / 
and  it  may  be  in  the  third  person,  as  "  Mr.  A.  B.  has  agreed," 
or  "  proposes,"  etc.  ;'  all  that  is  necessary  being,  that  the 
name  of  the  party  shall  be  affixed  in  such  a  manner  as  to 
authenticate  the  instrument.  But  though  the  memorandum 
be  in  the  party's  handwriting,  the  name  must  be  actually 
written,  or  something  be  done  equivalent  thereto.'     Where 

'  Sts.  of  1 87 1,  Vol.  I.,  Sec.  1758.       2  pasch.  Dig.,  p.  649,  Sec.  3875. 

=*  Sts.  of  1870,  Ch.  66,  Sec.  i.         "  Code  of  1849,  Cli.  143,  Sec.  i. 

^  Code,  Ch.  98,  Sec.  i. 

"  Hawkins  v.  Chace,  19  Pick.,  502;  McConnell  v.  Brillliart,  17  111.,  35  n  Hig- 
don  V.  Thomas,  i  Har.  &  Gill,  139;  Anderson  v.  Harold,  10  Ohio,  399;  Wright 
V.  King,  Harring,  Mich.,  Ch.  12  ;  Wise  v.  Ray,  3  Greene,  Iowa,  430. 

'  Ogilvie  V.  Foljambe,  3  Men,  53;  Propert  v.  Parker,  i  R.  &  My.,  625; 
Rleakley  V.  Smith,  11  Sim.,  150;  Western  v.  Russell,  3  V.  &  B.,  187;  Morison 
V.  Turnour,  18  Ves.,  175  ;  Knight  v.  Crockford,  i  Esp.,  190;  Yerby  v.  Grigsby, 
9  Leigh.,  387  ;  Penniman  v.  Hartshorn,  13  Mass.,  87  ;  Cabot  v.  Haskins,  3  Pick., 
83. 

**  Hawkins  v.  Holmes,  i  P.  Wms.,  770  ;  Hubert  v.  Turner,  4  Scott,  N.  R.,  486  ; 
Selby  V.  Selby,  3  Mer.,  2  ;  Barry  v.  Law,  i  Cranch  C.  C,  ']^  ;  Bailey  v.  Ogden, 
3  Johns,  399.  When  an  agreement  is  not  executed,  equity  will  not  enforce 
specific  performance,  even  though  the  non-execution  was  by  reason  of  the  fraudu- 
lent interference  of  the  other  party.  Gilbert  v.  Trustees,  etc.,  12  N.  J.  Eq.  (i 
Beas.),  180.  A  husband  and  wife  having  entered  into  an  agreement  for  the  sale 
of  certain  land,  he  had  a  deed  prepared  which  he  signed  and  acknowledged,  but 
which  the  wife  refused  to  execute.  A  suit  having  been  brought  to  enforce  the 
sale,  a  decree  was  rendered  dismissing  the  bill  as  to  the  wife,  but  ordering  a 
specific  performance  of  the  contract  as  to  that  part  of  the  land  belonging  to  the 
husband.  Held  error.  The  husband's  signature  was  not  of  the  contract  he  had 
made,  but  only  of  a  part  of  it,  and  the  memorandum  was  incomplete,  and  could 
not  be  evidence  of  the  contract.     Johnson  v.  Brooks,  31   Miss.,  17. 

The  question  has  been  considerably  discussed  in  the  English  courts,  whether 
a  mere  sealing  of  the  instrument  might  not  be  deemed  a  sufficient  compliance 
with  the  statute.  The  fact  that  such  a  question  has  been  raised,  and  decided  in 
the  affirmative  by  able  judges,  shows  the  extreme  latitude  of  construction  ac- 
corded to  this  portion  of  the  statute.  The  reasons  on  which  the  substitution  of 
a  seal  for  the  party's  name  has  been  allowed,  seems  to  us  specious,  and  the 
practice  calculated  to  invite  fraud.  In  Cherry  v.  Heming,  4  Wels.  Hurl.  & 
Gord.,  631,  although  the  decision  of  the  case  did  not  render  it  necessary  for  the 
court  to  pass  upon  the  sufficiency  of  sealing  (where  a  written  agreement,  which, 
by  its  terms,  was  not  to  be  performed  within  a  year,  was  sealed  without  being 
signed),  yet  the  opinion  of  the  court  on  the  question  was  given  by  Baron  Rolfe, 
as  follows:  "I  am  strongly  inclined  to  think  that  the  statute  does  not  extend  to 
deeds,  because  its  requirements  would  be  satisfied  by  putting  their  mark  to  the 
writing.  The  object  of  the  statute  was  to  prevent  matters  of  importance  from 
resting  on  the  frail  testimony  of  memory  alone.  Before  the  Norman  time,  sig- 
nature rendered  the  instrument  authentic.  Sealing  was  introduced  because  the 
people  in  general  could  not  write.    Then  there  arose  a  distinction  between  what 


o 


26  STATUTE    OF    FRAUDS.  §   24O. 


the  owner  of  land  gave  to  a  railroad  company  a  bond  to  con- 
vey to  the  company  certain  land  through  which  it  was 
authorized  to  make  its  road  on  payment  of  a  specified  sum 
of  money  at  a  given  time,  and  the  company  entered  and 
took  the  land  for  the  purposes  of  its  road,  but  refused  to 
accept  a  deed  and  pay  the  stipulated  sum  of  money,  it  was 
held  that  as  the  agreement  was  not  signed  by  the  company, 
it  could  not  be  enforced  against  it  in  equity/  A  letter 
which  commenced,  "  My  dear  Robert,"  and  ended  with  the 
words,  "do  me  the  justice  to  believe  me  the  most  affec- 
tionate of  mothers,"  was  held  not  to  be  signed  within  the 
statute."  If  the  party  cannot  write,  the  signature  may  be 
by  his  mark."  Where  the  buyer's  name  was  stated  in  the 
commencement,  and  signed  with  his  initials,  it  was  held 
sufficient/  The  signature  may  be  in  pencil/  And  if  the 
party's  name  be  printed  or  stamped  on  the  memorandum, 
he  intending  it  at  the  time  as  his  signature,  and  affirming  it 
to  be  such,  it  will  constitute  a  signing  within  the  require- 
ments of  the  statute/  Thus,  where  a  vendor  inserted  in  a 
printed  invoice,  which  contained  his  name,  the  name  of  the 
purchaser,  it  was  held  that  there  was  such  a  ratification  and 
adoption  of  the  printed  name  as  satisfied  the  statute/     It 

was  sealed  and  what  was  not  sealed,  and  that  went  on  until  society  became  more 
advanced,  when  the  statute  ultimately  said  that  certain  instruments  must  be 
authenticated  by  signature.  That  means,  that  certain  instruments  are  not  to 
rest  on  parol  testimony  only,  and  it  was  not  intended  to  touch  those  which  were 
already  authenticated  by  a  ceremony  of  a  higher  nature  than  a  signature  or  a 
mark."  See  Ellis  v.  Smith,  i  Ves.  Jun.,  10 ;  Lemayne  v.  Stanley,  3  Lev.,  T ; 
Warneford  v.  Warneford,  2  Strange,  764;  Cooch  v.  Goodman,  2  Adol.  &  Ell., 
N.  S.,  580  ;  Aveline  v.  Whisson,  i  M.  &  G.,  801  ;  Gryle  v.  Gryle,  2  Atk.,  177  ; 
Smith  v.  Evans,  i  Wils.,  313;  Wright  v.  Wakeford,  17  Ves.,  454. 

1  Jacobs  v.  Peterborough,  etc.,  R.R.,  8  Cush.,  223.  ^  Selby  v.  Selby,  supra. 

3  W^ilson  V.  Beddard,  12  Sim.,  28;  Taylor  v.  Dening,  3  N.  &  P.,  228;  Jack- 
son v.  Van  Busen,  5  Johns.,  144. 

^Salmon  Falls  Manf.  Co.  v.  Goddard,  14  How.,  446;  Phillimore  v.  Barry,  I 
Camp.,  513  ;  Barry  v.  Coombe,  i  Pet.,  640. 

*  Lucas  V.  James,  7  Hare,  410,  419. 

*  Saunderson  v.  Jackson,  2  B.  &  P.,  239;  i  Mad.  Ch.,376;  Boardman  v. 
Spooner,  13  Allen,  333. 

'  Schneider  v.  Norris,  2  M.  &  S.,  286.  The  owner  of  land,  who  had  author- 
ized real  estate  agents  to  sell  it,  indorsed  on  one  of  their  business  cards  a  brief 
description  of  the  land,  together  with  his  terms,  which  he  signed.  On  the  same 
card,  an  individual  wishing  to  purchase,  wrote,  "your  terms  are  accepted,"  and 
signed  it.  Held  t'  at  the  memorandum  was  sufficient.  Cossett  v.  Hobbs,  56 
111.,  231. 


§   241.  INTENTION    TO    AFFIX    SIGNATURE.  327 

is  not  necessary  that  the  identical  instrument  should  be 
signed.  If  it  is  acknowledged  by  any  other  instrument 
duly  signed,  it  is  sufficient.*  An  indorsement,  with  the  de- 
fendant's signature  thereto,  on  the  back  of  the  contract,  is 
sufficient  to  take  the  case  out  of  the  statute,  although  made 
at  a  subsequent  period  ;  it  being  a  complete  recognition  of 
the  contract,"  When  the  memorandum,  after  being  signed 
by  the  party,  is  altered  by  him  by  the  introduction  of  other 
words,  he  need  not  again  sign  it,  if  it  is  evident  that  he 
intended  that  his  signature  should  authenticate  the  writing 
in  its  changed  form.'  But  a  writing  signed  by  a  party  and 
kept  in  his  possession  without  delivery  to  the  other  party, 
is  not  a  compliance  with  the  statute ;  it  being  in  the  power 
of  the  party  to  destroy  the  writing  and  prevent  its  being 
used  as  evidence  of  the  contract.*  When  the  statute  pro- 
vides that  the  note  or  memorandum  shall  be  subscribed  by 
the  person  to  be  charged,  his  name  must  be  signed  at  the 
end  of  the  memorandum ; '  and  there  must  be  an  actual 
manual  subscription  ;  a  printed  name  is  not  sufficient." 

§  241.  Intention  to  affix  signature. — The  authorities  are 
not  uniform  as  to  how  far  the  writing  by  the  party  of  his 
name  must  be  with  the  intent  of  signing.     It  has   been 

'  Welford  v.  Beazely,  3  Atk.,  503.  ^  Gale  v.  Nixon,  6  Cosven,  445. 

^  Bluck  V.  Gombertz,  [4  Eng.  L.  &  Eq.,  345. 

"Johnson  v.  Brooks,  31  Miss.,  17.  Where  a  party  signs  an  agreement  to  do 
certain  things  after  the  other  shall  have  performed  conditions  which  are  prece- 
dent, and  the  conditions  have  been  fulfilled,  the  party  who  signed  the  agreement 
will  be  compelled  to  perform.     Laning  v.  Cole,  4  N.  J.  Eq.  (3  Green),  229. 

^  Davis  V.  Shields,  26  Wend.,  341,  reversing  S.  C,  24  lb.,  322  ;  James  v.  Pat- 
ten, 6  N.  Y.,  9,  reversing,  S.  C.,  8  Barb.,  344;  De  Beerski  v.  Paige,  47 
Barb.,  172. 

^  Vielie  v.  Osgood,  8  Barb.,  130.  In  the  following  States,  the  statute  requires 
the  note  or  memorandum  to  be  subscribed  by  the  party :  Alabama,  Code  of 
1867,  Sec.  1862;  California,  Code,  Sec.  1624;  Michigan,  Comp.  Laws  of  1871, 
Ch.  166,  Sec.  8;  Minnesota,  Sts.  of  1873,  Vol.  i,  pp.  691,  692,  Sees.  6,  12; 
New  York,  Rev.  Sts.,  6th  Ed„  Vol.  3,  pp.  141,  142  ;  Oregon,  Gen.  Laws,  1872, 
Ch.  8,  Sec.  775;  Wisconsin,  Sts.  of  1871,  Vol.  2,  Ch.  106,  Sec.  8.  In  New 
York,  an  agreement  for  the  sale  of  goods  of  the  value  of  fifty  dollars  or  more, 
must  be  signed  by  both  of  the  parties.  Justice  \^  Lang,  2  Robertson,  333.  The 
intention  of  the  statute  is,  that  if  the  contract  be  in  writing  both  parties  shall 
subscribe  it ;  that  if  there  is  no  contract  in  writing,  one  party  shall  deliver,  and 
the  other,  not  only  agree  to  accept,  but  actually  receive,  a  part  of  the  property 
sold  ;  or  that  the  buyer  shall  pay,  and  the  seller  receive,  some  part  ot  the  pur- 
chase money,  in  order  to  make  the  contract  effectual. 


328  STATUTE    OF    FRAUDS.  §   242. 

held  that  such  a  writing  with  the  intent  of  afterward  sign- 
ing, is  sufficient ;  as  where  a  person  writes  his  name  at  the 
beginning,  and  leaves  a  place  for  his  signature  at  the  bot- 
tom, and  thus  shows  "that  the  insertion  of  the  name  at 
the  beginning  was  not  intended  to  be  a  signature,  and  that 
the  paper  was  meant  to  be  incomplete  until  it  was  further 
signed.'  But  where  the  party  to  be  bound  signed  as  a 
witness,  it  was  held  to  amount  to  a  signature."  On  the 
other  hand,  the  court  of  Queen's  bench  decided  that  a  per- 
son signing  as  a  witness  would  not  be  holden  as  a  party,  or 
as  agent  of  a  party.'  So,  where  the  names  were  written  at 
the  commencement  of  the  writing  which  terminated  with 
the  words,  "as  witness  our  hands,"  without  any  signatures, 
it  was  held  by  the  English  court  of  common  pleas,  not  to 
be  sufficient,  for  the  reason  that  the  concluding  words 
showed  an  evident  intention  that  the  agreement  should  be 
signed  at  the  foot*  The  last  case  mentioned,  indicates  the 
ground  upon  which  every  similar  case  must  be  determined, 
to  wit,  the  intention  of  the  party  when  he  put  his  name  to 
the  paper.  Of  course,  when  the  name  of  the  party  is  in- 
troduced in  the  body  of  the  instrument  as  one  of  the  terms 
of  the  agreement — as  in  the  memorandum  for  a  lease,  in 
the  words  "the  rent  to  be  paid  to  A." — it  does  not  amount 
to  a  signature  by  A.' 

§  242.  Signature  of  agent. — As  the  statute  provides  that 
the  memorandum  must  be  signed  either  by  the  party  or  by 
"  some  person  thereunto  by  him  lawfully  authorized,"  it 
may  be  asked,  ist,  who  is  competent  thus  to  act  for  an- 
other ;  and  2d,  how  is  the  person  to  be  clothed  with  the 


'  Saunderson  v.  Jackson,  2  B.  &  P.,  239,  per  Lord  Eldon  ;  Knight  v.  Crock- 
ford,  I  Esp.,  190. 

"Welford  v.  Beazely,  3  Atk.,  503;  Coles  v.  Trecothick,  9  Ves.,  234,  251. 

•■'Gosbell  V.  Archer,  2  Adol.  &  £11,  500;  doubting-  Coles  v.  Trecothick, 
supra. 

*  Hubert  v.  Treheme,  3  Man.  &  Gr.,  743  ;  Hubert  v.  Turner,  4  Scott,  N. 
R.,  486. 

'^Stokes  V.  Moore,  i  Cox,  219;  Hawkins  v.  Hohnes,  I  P.  Wms.,  770  ;  Fry  on 
Specif.  Perform,,  161,  162. 


§   242.  SIGNATURE    OF    AGENT.  3 

requisite  authority  ?  The  agent  must  be  some  third  person. 
One  of  the  parties  to  the  agreement  cannot  constitute  him- 
self the  agent  of  the  other,  even  with  the  latter's  consent. 
Accordingly,  where  the  seller  wrote  the  memorandum  at 
the  dictation  of  the  buyer,  the  latter  was  held  not  to  be 
bound  by  it.'  Although  the  agent  of  the  seller  cannot  be- 
come the  agent  of  the  purchaser  in  the  same  transaction,  or 
an  agent  employed  to  buy,  become  the  agent  of  the  ven- 
dor ; '  yet  the  same  individual  may  act  as  the  agent  of  both 
parties.  Thus,  the  memorandum  of  a  broker  and  the  en- 
try of  an  auctioneer  in.  his  book  of  sales  are  sufficient  to 
constitute  a  binding  agreement ;  the  broker  and  auctioneer 
being  regarded  as  agents  authorized  by  both  parties.'     It 


'  Wright  V.  Dannah,  2  Camp.,  203 ;  and  see  Farebrother  v.  Simmons,  5  B.  & 
A.,  33  ;  Raynor  v.  Linthorne,  i  R.  &  M.,  325  ;  Cooper  v.  Smith,  15  East.,  103  ; 
Bailey  v.  Ogden,  3  Johns,  417.  A  contract  for  the  sale  of  land  entered  into  by 
the  joint  owners  of  the  property,  and  signed  by  only  one  of  such  joint  owners, 
cannot  be  enforced  against  them.  Mclntire  v.  Bowden,  61  Me.,  153;  Johnson 
V.  Brooks,  31   Miss.,  17. 

^  Lees  V.  Nuttall,  i  R.  &  M.,  53;  Lowther  v.  Lowther,  13  Ves.,  103;  Reed  v. 
Norris,  2  M.  &  C,  374;  Copeland  v.  Merc.  Ins.  Co.,  6  Pick.,  198;  Reed  v.  War- 
ner, 5  Paige  Ch.,  650 ;  Bartholomew  v.  Leach,  7  Watts,  472 ;  N.  Y.  Centr.  Ins. 
Co.  V.  National  Protection  Ins.  Co.,  20  Barb.,  470.  "The  rule  seems  to  be 
founded  on  the  danger  of  imposition  in  such  cases,  and  the  presumption  which 
a  court  of  equity  indulges  of  the  existence  of  fraud  which  is  inaccessible  to  the 
eye  of  the  court ;  and  consequently,  in  equity,  such  agreements  are  regarded  as 
constructively  fraudulent."     Story  on  Agency,  Sec.  211,  Jiote  2. 

^  Where  a  sale  of  real  estate  to  pay  debts  is  made  at  auction  by  an  adminis- 
trator, by  authority  of  the  court,  he  is  not  the  agent  of  the  purchaser  authorized 
by  him  to  make  and  sign  the  memorandum.  Smith  v.  Arnold,  5  Mason,  414. 
"  It  is  said  that  this  is  the  case  of  a  judicial  sale,  and  such  -sales  have  been  held 
not  to  be  within  the  statute  of  frauds.  The  cases  alluded  to  are  sales  of  a  very 
different  sort  from  that  before  the  court.  In  sales  directed  by  the  court  of 
chancery,  the  whole  business  is  transacted  by  a  public  officer  under  the  guid- 
ance and  superintendence  of  the  court  itself.  Even  after  the  sale  is  made,  it  is 
not  final  until  a  report  is  made  to  the  court,  and  it  is  approved  and  confirmed. 
Either  party  may  object  to  the  report,  and  the  purchaser  himself,  who  becomes 
a  party  to  the  sale,  may  appear  before  the  court,  and,  if  any  mistake  has  occurred, 
may  have  it  corrected.  He  therefore  becomes  a  party  in  interest,  and  may  rep- 
resent and  defend  his  own  interests  ;  and,  if  he  acquiesces  in  the  report,  he  is 
deemed  to  adopt  it,  and  is  bound  by  the  decree  of  the  court  confirming  the  sale. 
He  may  be  compelled,  by  process  of  the  court,  to  comply  with  the  terms  of  the 
contract ;  so  that  the  whole  proceedings,  from  the  beginning  to  the  end,  are 
under  the  guidance  and  direction  of  the  court,  and  the  case  does  not  fall  within 
the  mischief  supposed  by  the  statute  of  frauds.  In  the  case  of  an  administrator, 
the  authority  to  sell  is  indeed  granted  by  a  court  of  law ;  but  the  court,  when  it 
has  once  authorized  the  administrator  io  se\\,\?,  fundus  officio.  The  proceed- 
ings of  the  administrator  never  come  before  the  court  for  examination  or  con- 
firmation.    They  are  matters  i?i  pais,  owtx  which  the  court  has  no  control.     The 


33^  STATUTE    OF    FRAUDS.  §  243. 

has  been  held  that  a  member  of  a  corporation  may  sign  for 
the  corporation."  So,  the  record  of  the  votes  of  a  corpora- 
tion, signed  by  their  clerk,  to  employ  another  at  a  given 
salary,  constitutes  a  sufficient  memorandum  to  take  the 
agreement  out  of  the  statute  of  frauds."  And  a  partner 
may  sign  for  the  firm;'  each  partner  being  deemed,  in 
whatever  relates  to  partnership  business,  the  agent  of  the 
rest. 

§  243.  Age7tt  hozv  appointed. — The  expression  in  the 
statute,  "or  by  some  person  thereunto  by  him  lawfully 
authorized,"  means  not  that  such  person  shall  be  specifically 
delegated  to  do  that  particular  thing,  but  that  he  shall  be 
clothed  with  full  authority,  not  merely  to  conduct  the  ne- 
gotiation, but  to  conclude  a  binding  agreement  by  signing 
it  in  behalf  of  his  principal ;  and  a  general  agency  may  em- 
power him  to  do  this.'  The  agency  must,  however,  be 
clearly  shown,'    Where  the  memorandum  was  signed  by  an 

administrator  is  merely  accountable  to  the  court  of  probate  for  the  proceeds  ac- 
quired by  the  sale,  in  tfie  same  manner  as  for  any  other  assets.  But  whether 
he  has  acted  regularly  or  irregularly  in  the  sale  is  not  matter  into  which  there 
is  any  inquiry  by  the  court  granting  the  license,  or  by  the  court  of  probate  hav- 
ing jurisdiction  over  the  administration  of  the  estate  ;  so  that  the  present  case  is 
not  a  judicial  sale  in  any  just  sense,  but  the  execution  of  a  ministerial  authority." 
lb.,  per  Story,  J.  The  foregoing  remarks,  of  course,  have  no  application  where 
sales  of  real  estate  by  administrators  are  throughout  under  the  guidance  and  con- 
trol of  the  court.  In  Alabama  sales  of  land  by  an  executor  or  administrator, 
under  the  order  of  the  probate  court,  fall  within  the  description  of  judicial  sales. 
The  sales  are  required  to  be  reported  to  the  court,  which  then  confirms  or  sets 
them  aside,  and  not  until  the  confirmation  can  the  purchaser  acquire  a  complete 
title.  Hutton  v.  Williams,  35  Ala.,  503,  per  Walker,  C.  J.  It  is  the  same  in 
some  of  the  other  States. 

'  Stoddert  v.  Vestry  of  Port  Tobacco  Parish,  2  Gill  &  Johns,  227. 

^  Tufts  v.  Plymouth  Gold  Mining  Co.,  14  Allen,  407  ;  Chase  v.  City  of  Lowell, 
7  Gray,  33;  Johnson  v.  Trinity  Church  Soc,  11  Allen,  123. 

^  Kyle  V.  Roberts,  6  Leigh.,  445. 

*  "  By  the  term  general  agent,  is  meant,  first,  a  person  who  is  appointed  by  the 
principal  to  transact  all  his  business  of  a  particular  kind ;  or,  secondly,  an  agent 
who  is  himself  engaged  in  a  particular  trade  or  business,  and  who  is  employed 
by  his  principal  to  do  certain  acts  for  him  in  the  course  of  that  trade  or  business. 
In  both  of  these  cases  the  agent  will,  if  there  be  no  limitation  of  his  authority 
known  to  third  parties,  be  taken,  as  to  them,  to  be  a  general  agent,  and  will 
therefore  have  the  power  to  bind  his  principal  by  all  contracts  entered  into  with 
them  which  are  within  the  scope  of  his  ordinary  employment."  Russell  on  P'ac- 
tors  and  Brokers,  p.  75. 

*  Blore  V.  Sutton,  3  Mer.,  237  ;  Ridgway  v.  Wharton,  3  De  G.  M.  cS:  G.,  677  ; 
S.  C,  6  House  of  Lds.,  238;  Firth  v.  Greenwood,  i  Jur.  N.  S.,  806;  Roby  v. 
Cossitt,  78  111..  638. 


§  243- 


AGENT    HOW    APPOINTED.  33 1 


agent  acting  under  a  general  authority,  and  below  his  sig- 
nature were  these  words,  "  As  witness  our  hands,"  it  was 
held  that  as  it  appeared  from  this  that  the  defendants  in- 
tended to  sign  it  themselves,  they  were  not  bound/  When 
the  mode  of  appointing  the  agent  is  not  directed  by  statute, 
the  appointment  may  be  by  parol,"  It  is  sufficient  that 
there  be  satisfactory  proof  that  the  principal  employed  the 
agent,  and  that  the  agent  undertook  the  trust ;  and  the 
agency  may  be  inferred  from  letters,  or  other  acts  and  cir- 
cumstances, or  from  the  relations  of  the  parties,  and  the 
nature  of  the  employment,  without  evidence  of  an  express 
appointment."  Proof  of  assent,  on  the  part  of  the  principal, 

'  Hubert  v.  Turner,  4  Scott,  N.  R.,  486. 

^  Waller  v.  Hendon,  5  Vin.  Abr.,  524,  PI.  45  ;  Coles  v.  Trecothick,  9  Ves., 
234,  250;  Clinan  v.  Cooke,  i  Sch.  &  Lef.,  22  ;  Barry  v.  Lord  Barrymore,  lb.,  28  ; 
Talbot  V.  Bowen,  i  A.  K.  Marsh,  437;  Merritt  v.^Clason,  12  Johns,  102; 
McWhorter  v.  McMahan,  10  Paige  Ch.,  386 ;  Irvin  v.  Thompson,  4  Bibb.,  295  ; 
Shaw  V.  Nudd,  8  Pick.,  9 ;  Hawkins  v.  Chace,  19  lb.,  502 ;  iMortimer  v.  Corn- 
well,  I  Hoffm.  Ch.,  351  ;  McConneli  v.  Brillhart,  17  fll.,  354;  Taylor  v.  Merrill, 
55  lb.,  52  ;  Dykers  v.  Townsend,  24  N.  Y.,  57  ;  Moody  v.  Smith,  70  lb.,  598. 
The  common  law  rule  that  an  authority,  to  execute  a  deed  or  instrument  under 
seal,  must  be  conferred  by  an  instrument  of  equal  dignity  and  solemnity,  is  said 
to  have  been  relaxed  in  most  of  the  States,  as  follows  :  "  If  a  conveyance  or  any 
act  is  required  to  be  by  deed,  the  authority  of  the  attorney  or  agent  to  execute 
it  must  be  conferred  by  deed.  But  if  the  instrument  or  act  would  be  effectual 
without  a  seal,  the  addition  of  a  seal  will  not  render  an  authority  under  seal 
necessar}',  and,  if  executed  under  a  parol  authority,  or  subsequently  ratified  and 
adopted  by  parol,  the  instrument  or  act  will  be  valid  and  binding  on  the  princi- 
pal." Paige,  J.,  in  Worrall  v.  Munn,  5  N  Y.,  229.  And  see  White  v.  Cuyler,  6 
Term  R.,  176;  Bank  of  Columbia  v.  Patterson,  7  Cranch,  299,  307  ;  Randall  v. 
Van  Vechten,  19  Johns,  60;  Hanford  v.  McNair,  9  Wend.,  54;  Evans  v.  Wells, 
22  Wend.,  340,  341  ;  Lawrence  v.  Taylor,  5  Hilt,  113.  In  the  following  States 
the  ag"ent  must  be  authorized  in  writing:  California,  Code,  Sec.  1741  ;  Illinois, 
Sts.,  Ed.  of  1874,  Vol.  3,  p.  210,  Sees,  i,  2;  Michigan,  Comp.  Laws,  1871,  Vol. 
2,  p.  1455,  Ch.  166,  Sec.  8  ;  Nebraska,  Genl.  Sts.,  1873,  p.  392,  Ch.  25  ;  Morgan 
V.  Bergen,  3  Neb  ,  309;  New  Hampshire,  Genl.  Sts.,  1867,  Ch.  201,  Sec.  12.  In 
Pennsylvania,  under  the  statute  of  that  State,  no  interest,  at  law  or  in  equity,  can 
be  contracted  for  by  an  agent,  unless  he  is  authorized  by  writing.  Parish  v. 
Koons,  Parson's  Sel.  Cas.,  78 ;  Home  v.  Fricke,  6  Serg  &  Rawle,  90 ;  Meredith 
V.  Macoss,  I  Yeates,  200;  Nicholson  v.  Mifflin,  lb.,  200;  Twitchell  v.  Philadel- 
phia, 33  Pa.  St.,  212.  The  same  construction  of  the  statute,  with  reference  to 
the  appointment  of  agents  by  parol,  applies  to  agents  for  the  sale  of  both  real 
and  personal  property.     McComb  v.  Wright,  4  Johns  Ch.,  659. 

^  Sharp  V.  Milligan,  22  Beav.,  6o6 ;  Dyas  v.  Cruise,  2  Jon.  &  Lat.,  461.  When 
written  authority  to  an  agent  to  make  a  contract  for  the  sale  of  real  estate  in 
behalf  of  his  principal  is  relied  on,  the  rule  of  construction  is,  that  all  written 
powers,  such  as  letters  of  attorney,  or  letters  of  instruction,  must  receive  a  strict 
interpretation  ;  the  authority  nevier  being  extended  beyond  that  which  is  given 
in  terms,  or  is  absolutely  necessary  for  carrying  the  authority  so  given  into  effect. 
Bissell  V.  Terry,  69  111.,  184. 


332  STATUTE    OF    FRAUDS.  §   244. 

that  the  clerk  of  an  agent  shall  act  as  agent,  will  constitute 
him  such/  But  a  solicitor  employed  in  a  marriage  treaty, 
who  drew  up  a  memorandum  of  the  arrangement  agreed 
upon,  was  held  not  to  be  an  agent  lawfully  authorized  to 
bind  the  parties,  so  as  to  make  the  insertion  by  him  of  their 
names  in  the  memorandum  a  signature  within  the  statute.* 
§  244.  Sanction  by  principal  of  agent's  act. — The  acts 
of  an  agent  done  without  authority,  may  afterward  be 
ratified  and  confirmed  by  his  principal  ;  such  adoptive 
authority,  relating  back  to  the  time  of  the  transaction,  and 
being  deemed  in  law  the  same  for  all  purposes,  as  if  it  had 
been  given  before.'  There  need  not  have  been  an  express 
act  of  ratification  in  order  to  compel  the  principal  to  per- 
form the  contract.  But  his  subsequent  assent  may  be  in- 
ferred from  circumstances  which  the  law  considers  equiva- 
lent to  an  express  ratification ;  as  where  the  alleged 
principal  takes  the  benefit  of  the  contract,  or  acquiesces  in 
it  for  a  length  of  time  beyond  what  is  reasonably  required 
for  the  expression  of  dissent.'    If  the  principal,  although  he 

'  Coles  V.  TrecDthick,  9  Ves.,  234. 

^  Lord  Glengal  v.  Barnard,  i  Keen,  769.  And  see  De  Biel  v.  Thomson,  3 
Beav.,  469. 

^Ridg-way  v.  Wharton,  supra  ;  Clark  v.  Riemsdyk,  9  Cranch,  346  ;  Lawrence 
V.  Taylor,  5  Hill,  107.  In  Maclean  v.  Dunn.  4  Bing.,  722,  Best,  J.,  said  :  "  It 
has  been  argued  that  the  subsequent  adoption  of  the  contract  by  Dunn,  will  not 
take  this  case  out  of  the  operation  of  the  statute  of  frauds  ;  and  it  has  been  in- 
sisted that  the  agent  should  have  his  authority  at  the  time  the  contract  is  entered 
into.  If  such  had  been  the  intention  of  the  Legislature,  it  would  have  been 
expressed  more  clearly.  But  the  statute  only  requires  some  note  or  memoran- 
dum in  writing  to  be  signed  by  the  party  to  be  charged,  or  his  agent  thereunto 
lawfully  authorized,  leaving  us  to  the  rules  of  the  common  law  as  to  the  mode 
in  which  the  agent  is  to  receive  his  authority.  Now  in  all  other  cases,  a  subse- 
quent sanction  is  considered  the  same  thing  in  effect,  as  assent  at  the  time. 
And,  in  my  opinion,  the  subsequent  sanction  of  a  contract  signed  by  an  agent, 
takes  it  out  of  the  operation  of  the  statute  more  satisfactorily  than  an  authority 
given  beforehand.  Where  the  authority  is  given  beforehand,  the  party  must 
trust  to  his  agent.  If  it  be  given  subsequently  to  the  contract,  the  party  knows 
that  all  has  been  done  according  to  his  wishes." 

*  Bigg  V.  Strong,  Week.  Rep.,  1857-1858,  173.  An  offer  in  writing  to  take  a 
lease  of  a  theatre,- signed  by  the  proposed  lessees,  and  attested  by  the  lessor's 
agent,  but  not  naming  the  lessor,  and  only  addressed  to  him  as  "Sir,"  followed 
by  an  acceptance  in  writing  by  the  agent  addressed  to  and  received  by  the  pro- 
posed lessees,  but  not  naming  the  lessor,  or  signed  by  them  or  referred  to  in 
any  other  writing,  is  not  a  memorandum  of .  agreement  within  the  statute  of 
frauds  so  as  to  entitle  the  lessor  to  have  the  same  specifically  enforced.  Wil- 
liams V.  Jordan,  L.  R.  6,  Ch.  D.  517;  referring  to  Warner  v.  Willington,  3 
Drew,  523. 


§  245- 


SIGNATURE    BY    AGENT    HOW    MADE.  ;^T,;^ 


did  not  authorize  the  agent  to  act  for  him,  represented  to 
the  other  party  to  the  contract  that  he  had  done  so,  he  will 
be  estopped  from  afterward  denying  it.  But  a  ratification 
will  not  be  presumed  from  vague  expressions  to  a  third 
person/  The  revocation  of  the  agent's  authority  may  of 
course  be  proved  by  parol.' 

§  245.  SignahLve  by  agent  how  made. — With  regard  to 
the  manner  of  the  agent's  signing,  it  does  not  seem  to  be 
necessary  that  the  name  of  the  principal  should  anywhere 
appear  in  the  memorandum  ;  the  statute  being  complied 
with,  if  the  writing  is  signed  by  the  agent  in  his  own 
name.'     Where  an  agent,  in  Massachusetts,  of  coal  dealers 

'  Ridgway  v.  Wharton,  supra. 

■  Manser  v.  Back,  6  Hare,  443.  If  the  agent  sells,  and  does  not  sign  a  note 
or  memorandum  in  writing,  the  vendor  has  the  same  locus  peniteniice  as  if  he 
himself  verbally  agrees  to  sell ;  for  he  may  revoke  the  authority  of  the  agent  at 
any  thne  before  the  agreement  is  executed  according  to  the  statute.  So  an 
agent  to  purchase,  must  have  authority  to  bind  the  purchaser  by  signing  the 
agreement,  and  his  authority  may  be  revoked  before  the  contract  is  reduced  to 
writing  and  signed.     Yerby  v.  Grigsby,  9  Leigh,  387. 

^Yerby  v.  Grigsby,  supra;  Stackpole  v.  Arnold,  11  Mass.,  27;  Rice  v. 
Gove,  22  Pick.,  158;  Minard  v.  Mead,  7  Wend.,  68;  Spencer  v.  Field,  10  lb., 
87;  Pentz  V.  Stanton,  lb.,  271;  Ford  v.  Williams,  21  How.,  287;  Dykers  v. 
Townsend,  24  N.  Y.,  57  ;  Coleman  v.  First  Nat.  Bank  of  Elmira,  53  N.  Y.,  393 ; 
Eastern  R.R.  Co.  v.  Benedict,  5  Gray,  566;  Walsh  v.  Barton,  24  Ohio  St.,  28  ; 
White  v.  Proctor,  4  Taunt.,  209.  It  is  doubtless  somewhat  difficult  to  recon- 
cile the  doctrine  here  stated,  with  the  i*ule  that  parol  evidence  is  inadmissible  to 
change,  enlarge,  or  vary  a  written  contract,  and  the  argument  upon  which  it  is 
supported,  savors  of  subtlety  and  refinement.  In  some  of  the  earlier  cases,  the 
doctrine  was  stated  with  the  qualification,  that  it  applied  when  it  could  be  col- 
lected from  the  whole  instrument,  that  the  intention  was  to  bind  the  principal. 
But  it  will  appear,  from  an  examination  of  the  cases  cited,  that  this  qualification 
is  no  longer  regarded  as  an  essential  part  of  the  doctrine.  Whatever  ground 
there  may  have  been  originally,  to  question  the  legal  soundness  of  the  doctrine 
referred  to,  it  is  now  too  firmly  established  to  be  overthrown.  But  the  vendor 
in  a  sealed  executory  agreement  inter  partes,  for  the  sale  of  land,  cannot  en- 
force it  as  the  simple  contract  of  a  person  not  mentioned  in,  or  a  party  to,  the 
instrument,  on  proof  that  the  vendee  named  therein,  and  who  signed  and  sealed 
it  as  his  contract,  had  oral  authority  from  such  third  person  to  enter  into  the 
contract  of  purchase,  and  acted  as  his  agent  in  the  transaction,  especially  when 
it  appears  that  the  vendor  has  remained  in  possession  of  the  land,  and  no  act  of 
ratification  by  tho  undisclosed  principal  is  shown.  It  has  been  held  that  when 
a  sealed  contract  has  been  executed  in  such  form  that  it  is,  in  law,  the  contract 
of  the  agent,  and  not  of  the  principal,  but  the  principal's  interest  in  the  contract 
appears  upon  its  face,  and  he  has  received  the  benefit  of  performance  by  the 
other  party,  and  has  ratified  and  confirmed  it  by  acts  in  pais,  and  the  contract 
is  one  which  would  have  been  valid  without  a  seal,  the  principal  may  be  made 
liable  upon  the  promise  contained  in  the  instrument,  which  may  be  resorted  to, 
to  ascertain  the  terms  of  the  agreement.  Randall  v.  Van  Vechten,  19  Johns, 
60;  Du  Bois  V.  Del.  &  Hud.  Canal  Co.,  4  Wend.,  285;  Lawrence  v.  Taylor,  5 
Hill,  107. 


334  STATUTE    OF    FRAUDS.  §   246. 

residing  in  Pennsylvania,  wrote  a  letter  to  the  buyer  stat- 
ing an  agreement  to  sell,  the  price,  quantities,  and  descrip- 
tion of  the  different  kinds  of  coal  sold,  the  place  where  it 
was  to  be  delivered,  and  the  time  of  payment,  without 
naming  his  principals,  or  expressing  in  terms  that  he  acted 
as  their  agent,  alluding  to  them  as  "  our  people,"  it  was 
held  a  sufficient  memorandum  to  meet  the  requirements  of 
the  statute.' 

§  246.  Signature  of  pc7'-so7i  conducting  public  sale. — The 
auctioneer  is  a  competent  agent  to  sign  for  the  purchaser 
either  of  land  or  goods  sold  at  auction  ;  and  the  insertion 
of  the  purchaser's  name,  as  the  highest  bidder,  in  the 
memorandum  of  sale  by  the  auctioneer,  is  a  signing  within 
the  requirements  of  the  statute."  And  the  clerk  of  the  auc- 
tioneer, who  enters  the  name  of  the  purchaser  at  the  sale  in 
a  book,  is  an  agent  for  the  purchaser."    But  although,  when 

1  Williams  v.  Bacon,  2  Gray,  387. 

■-  Macomb  v.  Wright,  4  Johns  Ch.,  659  ;  Hinde  v.  Whitehouse,  7  East.,  538; 
Stansheld  v.  Johnson,  i  Esp.,  loi  ;  Walker  v.  Constable,  i  Bos.  &  Pull.,  306  ; 
Cordon  v.  Sims,  2  McCord  Ch.,  164 ;  Adams  v.  McMillan,  7  Porter,  73  ;  Ander- 
son V.  Chick,  Bailey  Eq.,  118 ;  Endicott  v.  Perry,  14  Sm.  &  Marsh,  157  ;  White 
V.  Crew,  16  Ga.,  416.  The  memorandum  of  an  auctioneer,  in  order  to  be  a  valid 
act,  must  have  been  made  within  such  a  time,  as  shows  it  to  have  been  a  part 
of  the  transaction.  White  v.  Watkins,  23  Me.,  423.  It  is  said  that  it  was  not 
decided  in  Maine  and  Massachusetts,  that  in  the  sale  of  real  estate  at  auction, 
the  auctioneer  is  to  be  deemed  the  agent  of  the  purchaser,  and  as  sucli  compe- 
tent to  charge  him  by  his  signature,  until  the  year  1826.  Cleaves  v.  Foss,  4  Me  , 
I.  In  England,  after  much  fluctuation  and  doubt,  it  was  settled  that  an  auc- 
tioneer is  to  be  deemed  the  agent  of  both  parties  in  respect  to  the  sale,  and 
authorized  to  make  a  memorandum  for  both.  The  doctrine  was  first  adopted 
by  Lord  Mansfield  in  Simon  v.  Motivos,  3  Burr.,  1921,  and  subsequently  followed 
with  hesitation.  It  has  been  disapproved  by  high  authority.  In  Smith  v.  Arnold, 
5  Mason,  414,  Judge  Story  said  :  "  It  appears  to  me,  speaking  with  all  due  re- 
spect, to  have  done  much  to  destroy  the  salutary  operation  of  the  statute  of  frauds. 
By  the  common  law,  if  an  agent  is  to  execute  a  deed  for  his  principal,  his  authority 
must  be  of  as  high  a  nature.  It  must  be  by  deed.  By  analogy,  it  would  have 
seemed  convenient,  if  not  indispensable,  to  have  held,  that  where  the  statute  to 
prevent  frauds  and  perjuries  required  a  contract  to  be  in  writing,  if  executed  by 
an  agent,  his  authority  should  be  in  wrinng  also.  That  the  auctioneer  is  agent 
of  the  seller,  is  clear.'  That  he  is  also  agent  of  the  buyer,  is  not  so  very  clear, 
and  is  a  conclusion  founded  on  somewhat  artificial  reasoning.  But  the  doctrine 
is  now  established  ;  and  the  best  reason  in  support  of  it,  is,  that  he  is  deemed  a 
disinterested  person,  having  no  motive  to  misstate  the  bargain,  and  enjoying 
equally  the  confidence  of  both  parties.'' 

'  Bird  v.  Boulter,  4  B.  &  Ad.,  443  ;  Gosbell  v.  Archer,  2  Adoi.  &  Ell,  500; 
Frost  V.  Hill,  3  Wend.,  386;  First  Baptist  Church  of  Ithaca  v.  Bigelow,  16  lb., 
28  ;  Gill  V.  bicknell,  2  Cush.,  358  ;  Hart  v.  Woods,  7  Blackf ,  568  ;  Doty  v.  Wilder, 
15  111.,  407.     But,  in  an  early  case  in  South  Carolina,  it  was  held  that  an  auc- 


§   246.  AGENCY    OF    AUCTIONEER.  335 

a  sale  is  had  at  auction,  the  auctioneer,  from  the  necessity 
of  the  case,  is  the  agent,  not  only  of  the  vendor,  but  also 
of  the  purchaser,  yet,  when  the  necessity  does  not  exist,  as 
in  a  subsequent  purchase  in  private  from  the  auctioneer,  no 
such  agency  arises/  Where  a  public  sale  of  land  is  made 
by  order  of  court,  the  officer  making  the  sale  is  the  agent 
of  both  parties  as  well  as  of  the  court,  and  the  entry  of  the 
officer  on  his  sales  book  is  a  sufficient  memorandum/  But 
not  an  entry  made  by  a  person  employed  by  the  officer  to 
auction  off  the  property  for  him/  A  sheriff's  return  to  a 
writ  of  fieri  facias  reporting  a  sale  of  real  estate,  or  his 
execution  of  a  deed  to  the  purchaser,  are  either  of  them  a 
sufficient  memorandum.  It  is  not  necessary  that  the  return 
should  be  indorsed  on  the  writ,  or  the  deed  executed  at  the 
time  of  the  sale/  Where  a  broker  who  acts  for  the  buyer 
and  seller,  makes  an  entry  of  the  transaction  in  his  book, 
and  delivers  to  them  the  bought  and  sold  notes  transcribed 
therefrom,  the  contract  of  sale  is  binding  on  each/  When 
an  auctioneer  makes  a  pencil  memorandum  on  a  loose  slip 
of  paper  at  the  moment  of  sale,  and  shortly  afterward  enters 
the  sale  in  his  sales  book,  the  latter  is  regarded  as  the  true 
entry/     When  a  proper  entry  is  made  by  the  auctioneer  at 

tioneer's  clerk  is  not  an  agent  within  the  statute  whose  signature  will  give  valid- 
ity to  a  contract  of  sale  of  real  estate  at  auction,  unless  the  authority  of  the  party 
has  been  specially  obtained  for  that  purpose,  or  he  has  assented  to  it.  Meadows 
V,  Meadows,  3  McCord,  458.  And  see  Entz  v.  Mills,  i  McMuUan,  453  ;  Christie 
V.  Simpson,  i  Rich.,  407  ;  Carmack  v.  Masterson,  3  Stew.  &  Port,,  411. 

'  Emerson  v.  Heelis,  2  Taunt.,  38  ;  Kemeys  v.  Proctor,  3  V,  &  B.,  57  ;  S.  C,  I 
J.  &  W.,  350;  Buckmaster  v.  Harrop,  7  Ves.,  341  ;  13  lb.,  456;  Kenworthy  v, 
Schofield,  2  B.  &  C,  945  ;  Bartlett  v.  Purnell,  4  A.  &  E.,  792, 

'^  Jenkins  v.  Hogg,  2  Const.  R,,  821,  '  Hutton  v,  Williams,  35  Ala.,  503. 

*  Barney  v.  Patterson,  6  Har.  &  Johns,  182;  Fen  wick  v,  Floyd,  i  Har.  &  Gill, 
172  ;  Christie  v.  Simpson,  i  Rich.,  407  ;  Elfe  v.  Gadsden,  2  lb.,  372  ;  Nichol  v, 
Ridley,  5  Yerg.,  63.  See  Robinson  v.  Garth,  6  Ala.,  204;  Ennis  v.  Waller,  3 
Blackf ,  472. 

*  Ruckerv.  Cammeyer,  i  Esp.  N.  P.,  105;  Hicks  v.  Hankin,  4  lb.,  114;  Cham- 
pion v.  Plummer,  i  N.  R.,  253;  Merritt  v.  Clason,  12  Johns,  102;  Clason 
V,  Bailey,  14  lb.,  484.  Where  in  a  verbal  agreement  for  the  purchase  of  goods, 
it  was  stipulated  that  they  were  to  be  subject  to  the  buyer's  approval,  and  the 
broker's  sale  book  omitted  that  part  of  the  bargain,  it  was  held  that  there  was 
no  sufficient  memorandum  to  take  the  case  out  of  the  statute,  Boardman  v. 
Spooner,  13  Allen,  353, 

"  Episcopal  Church  of  Macon  v,  Wiley,  2  Hill  Ch.,  584, 


S3^  STATUTE    OF    FRAUDS.  §   247. 

the  commencement  of  the  sale  which  is  adjourned  to,  and 
continues  on  a  second  day,  there  need  not  be  a  repetition 
of  the  entry.' 

§  247.  Entry  to  be  made  in  case  of  sale  at  auction. — The 
memorandum  of  the  auctioneer  must  refer  to  the  conditions 
of  sale,  and  state  the  material  terms  of  the  agreement."  At 
an  auction  sale  of  real  estate  subject  to  conditions,  the  auc- 
tioneer entered  in  his  sale  book  the  names  of  the  vendor 
and  purchaser,  the  subject  matter  of  the  sale,  and  the  amount 
of  the  purchase  money,  but  omitted  in  the  entry  to  embody 
or  make  any  reference  to  the  conditions  of  sale.  It  was  held 
that  there  was  not  a  sufficient  written  contract  within  the 
statute  of  frauds,  and  specific  performance  was  refused  as 
against  the  purchaser.'  On  a  sale  of  real  estate  at  auction, 
an  entry  which  did  not  disclose  the  name  of  the  vendor  was 
held  fatally  defective.*  Upon  a  sale  at  auction  of  real  estate 
in  lots,  the  particulars  stated  that  the  sale  was  by  direction 
of  the  proprietor.  But  the  name  of  the  vendor  did  not 
appear,  A  memorandum  indorsed  on  a  copy  of  the  par- 
ticulars was  signed  by  the  purchaser  of  one  of  the  lots,  and 
by  the  auctioneer  in  behalf  of  the  vendor.  It  was  held  that 
the  vendor  was  sufficiently  described  to  satisfy  the  require- 
ments of  the  statute  of  frauds,  and  specific  performance 
of  the  contract  was  decreed  at  the  suit  of  the  purchaser.' 
Where  a  contract  is  made  by  a  broker  for  goods  expected 
from  abroad,  and  the  purchaser  stipulates  for  certain  con- 
ditions, which  conditions  the  broker  omits  in  making  the 
entry  in  his  sale  book,  and  no  sale  note  is  delivered,  the 
seller  is  not  bound,  although  the  conditions  were  for  the 
benefit  of  the  buyer,  and  he  is  willing  to  waive  them.' 
Under  the  New  York  revised  statutes,  a  mere  memoran- 


■  Price  V.  Durin,  56  Barb.,  647.     See  Hicks  v.  Whitmore,  12  Wend.,  548. 
"^  Morton  v.  Dean,   13  Mete,  385  ;  Kenworthy  v.  Scofield,  2  B.  &  C,  945  ; 
Peirce  v.  Corf,  L.  R.  9,  Q.  B.  210. 
3  Rishton  v.  Whetmore,  L.  R.  8,  Ch.  D.  467. 

*  Nichols  V.  Johnson,  10  Conn.,  192  ;  Sherburne  v.  Shaw,  i  N.  H.,  157. 
''  Sale  V.  Lambert,  L.  R.  18,  Eq.  i.  "  Davis  v.  Shields,  26  Wend.,  341. 


§   247-  ENTRY    TO    BE    MADE    IN    CASE    OF    SALE.  ^T^J 

dum,  in  the  auctioneer's  book,  made  by  him,  or  his  clerk 
under  his  direction,  specifying  the  property  sold,  the  price, 
the  terms  of  sale,  and  the  names  of  vendor  and  purchaser,  is 
not  sufficient  to  make  a  valid  and  binding  contract  for  the 
sale  of  land  ;  though  the  statute  expressly  declares  it  to  be 
sufficient  in  relation  to  a  sale  of  goods.'  Where  land  is  sold 
at  auction,  the  auctioneer  must  reduce  the  contract  to  writ- 
ing at  the  time  of  the  sale,  and  subscribe  it  as  the  agent  of 
the  parties,  or  at  least  as  the  agent  of  the  vendor.'  The 
note  or  memorandum  may  consist  of  several  papers  so  con- 
nected, physically  or  by  internal  reference,  that  there  can  be 
no  uncertainty  as  to  their  meaning  and  effect  when  taken 
together.  This  connection  cannot,  however,  as  has  already 
been  stated,  be  shown  by  extrinsic  evidence.'  Where,  at 
the  time  of  sale  of  real  estate  at  auction,  the  auctioneer  first 
read  the  printed  advertisement  of  sale,  and  then  read  the 
terms  of  sale  as  written  in  his  auction  book,  but  the  adver- 
tisement was  not  pasted  on  the  auction  book  with  the  terms 
of  sale  there  written,  or  in  any  way  attached  to  the  written 
terms  of  sale,  and  they  did  not  refer  to  each  other  on  their 
face,  it  was  held  not  sufficient."  Where  a  letter  containing 
the  terms  of  sale  of  real  estate,  written  by  the  vendor  and 
addressed  to  the  auctioneer,  was  pinned  by  the  latter  on  a 
page  of  his  sales  book,  and  the  remaining  entries  relative  to 
the  sale  were  made  by  him  on  the  same  page  of  the  book, 
and  subscribed  by  him,  it  was  held  a  sufficient  memorandum 
within  the  statute.'  The  same  was  held  as  to  a  mem.orandum 
made  by  an  auctioneer  at  the  time  of  the  sale  of  land,  con- 
taining the  name  of  the  vendor,  the  terms  of  sale,  and  a 
printed  advertisement  taken  from  a  newspaper,  and  at- 
tached to  the  auctioneer's  book  of  sales,  showing  where  the 
land  was,  and  of  what  it  consisted,  with  the  w^ords  in  pen- 

'  Coles  V.  Bowne,  lo  Paige  Ch.,  526.       ^  Champlin  v.  Parish,  1 1  Paige  Ch.,  405. 

*  Ante,  §  233.  ^  Mayer  v.  Adrian,  77  N.  C,  83. 

*  Tallman  v.  Franl<lin,  14  N.  Y.,  584,  reversing  S.  C,  3  Duer,  395. 

22 


SS^  STATUTE    OF    FRAUDS.  §§   248,   249. 

cil,  "  I  lot  cor.  of  Av.  A,  Wm.  Irwin,  i  lot  next  adjoining, 
J.  L.  Pinckney"  ;  subscribed  by  the  auctioneer.' 

§  248.  Wke?i  the  statute  not  a  defence. — There  remain 
to  be  considered  certain  exceptions  in  which  a  court  of 
equity  will  enforce  parol  contracts,  notwithstanding  the 
statute.  These  are  :  ist,  where  a  written  agreement  has 
been  prevented  by  fraud  ;  2d,  in  case  of  part  performance 
of  the  parol  contract ;  and,  3d,  where  the  defendant  admits 
the  agreement  and  does  not  set  the  statute  up  in  defence.' 

§  249.  Frand of  defendaiit.- — If  the  reduction  of  the  con- 
tract to  writing  was  prevented  by  the  fraud  of  one  of  the 
parties,  specific  performance  will  be  decreed,  upon  proof  of 
the  parol  agreement  and  of  the  fraud.'     "  The  rule  that 

'  Pinckney  v.  Hagadorn,  i  Duer,  89.  And  see  Price  v.  Dunn,  56  Barb.,  647, 
as  to  memorandum  made  by  clerk  of  auctioneer  on  the  sale  of  goods. 

"^  Morse  v.  Merest,  6  Mad.,  26  ;  Ridgway  v.  W^harton,  3  De  G.  M.  &  G.,  677 ; 
Lincoln  v.  Wright,  4  De  G.  &  J.,  16;  Jenkins  v.  Eldredge,  3  Story,  181  ;  Willink 
V.  Vanderveer,  i  Barb.,  599;  Trapnall  v.  Brown,  19  Ark.,  39;  Shields  v.  Tram- 
mel), lb.,  51.  Contra,  Box  \\  Stanford,  13  Smed.  &  Marsh,  93.  And  see  Glass 
V.  Hulbert,  102  Mass.,  38. 

2  The  principle  upon  which  fraud  takes  a  case  out  of  the  operation  of  the 
statute  has  been  thus  stated :  "  Upon  the  statute  of  frauds,  though  declaring 
that  interests  shall  not  be  bound  except  by  vriting,  cases  in  this  court  are  per- 
fectly familiar  deciding  that  a  fraudulent  use  shall  not  be  made  of  that  statute 
where  this  court  has  interfered  against  a  party  meaning  to  make  it  an  instru- 
ment of  fraud,  and  said  he  should  not  take  advantage  of  his  own  fraud,  even 
though  the  statute  has  declared  that  in  case  those  circumstances  do  not 
exist,  the  instrument  shall  be  absolutely  void.  One  instance,  is  the  case  of 
instructions  upon  a  treaty  of  marriage  ;  the  conveyance  being  absolute,  but 
subject  to  an  agreement  for  a  defeasance,  which,  though  not  appearing  by 
the  contents  of  the  conveyance,  can  be  proved  aliunde  ;  and  there  are  many 
other  circumstances."  Lord  Eldon  in  Mestaer  v.  Gillespie,  11  Yes.,  627,  628. 
In  Pember  v.  Mathews,  i  Bro.  C.  C.,  52,  the  plaintiff  was  permitted  to  prove  by 
parol  that,  when  the  agreement  was  made,  an  undertaking  was  given  by  the  as- 
signee of  the  lease  to  the  assignor,  for  indemnity  against  the  rents  and  covenants  ; 
the  court  holding  that  "  where  the  objection  is  taken  before  the  party  executes 
the  agreement,  and  the  other  side  promises  to  rectify  it,  it  is  to  be  considered  a 
fraud  on  the  party  if  such  promise  is  not  kept."  See  Clarke  v.  Grant,  14  Yes., 
525  ;  Colyer  v.  Clay,  7  Beav.,  188.  And  where  there  was  a  parol  agreement  for 
the  loan  of  money  on  a  mortgage,  an  absolute  conveyance  from  the  mortgagor, 
and  a  defeasance  from  the  mortgagee,  and  after  the  mortgagee  had  obtained  the 
conveyance  he  refused  to  execute  the  defeasance,  he  was  decreed  to  do  so  on 
the  ground  of  fraud,  i  Eq.,  Cas.  Abr.  20,  PI.  5  ;  Walker  v.  Walker,  2  Atk.,  98. 
So,  if  a  will  be  obtained  by  a  promise  to  dispose  of  the  property  in  a  particular 
way,  the  court  will  give  effect  to  the  verbal  agreement  by  raising  a  trust  on  the 
property  devised  or  bequeathed  by  the  will.  Podmore  v.  Gunning,  7  Sim.,  644  ; 
Chester  v.  Urwick,  23  Beav.,  407.  But  where  it  is  agreed  by  parol  between  the 
parties,  that  the  contract  shall  be  reduced  to  writing,  a  refusal  to  sign  a  written 
agreement  is  not  a  fraud  of  which  the  court  can  take  cognizance.  Whitechurch 
V.  Bevis,  2  Bro.  C.  C,  565  ;  though  it  was  formerly  held  otherwise.  Leake  v. 
Morris,  i  Dick.,  14;  Hollis  v.  Whiteing,  i  Vern.,  151  ;  Deane  v.  Izard,  lb.,  159. 


§   250.  WHEN    TRUST    MAY    BE    SHOWN    BY    PAROL.  339 

fraud  takes  the  case  out  of  the  statute  is  too  well  settled  to 
admit  of  doubt  ;  and  for  the  purpose  of  showing  that  fraud 
has  been  committed,  or  is  being  attempted,  parol  evidence 
has  always  been  held  to  be  admissible.  The  difficulty  has 
been,  in  determining  what  amounted  to  fraud  in  the  particu- 
lar case  ;  and  to  this  difficulty  is  referable  those  conflicts  of 
opinion  which  seem  occasionally  to  have  trenched  upon  the 
rule  itself.  The  rule,  however,  is  universally  acknowledged, 
and  there  is  no  case  in  which  the  conduct  of  the  defendant 
was  held  to  be  fraudulent  that  he  has  been  allowed  to  shel- 
ter himself  behind  the  statute."  ' 

§  250.  When  trust  may  be  shown  by  parol. — The  pro- 
visions of  the  statute  of  frauds  do  not  relate  to  implied 
trusts,  or  those  which  are  raised  or  created  by  operation  of 
law,  and  not  from  the  contracts  of  the  parties.'  A  trust 
results  by  implication  of  law  :  first,  where  the  purchaser 
has  paid  the  price  with  his  money,  but  taken  the  convey- 
ance in  the  name  of  another  ;  or,  where  he  has  paid  with 
the  money  of  another,  and  taken  the  conveyance  in  his  own 
name  ;  second,  where  a  trust  has  been  declared  of  but  part 
of  the  estate,  from  which  the  law  implies  an  intent  to  re- 
serve the  beneficial  ownership  of  the  residue  ;  and,  third, 
where  there  has  been  a  plain  fraud.'  In  such  cases  parol 
evidence  is  admissible  to  establish  the  collateral  fact  from 

'  Cope,  J.,  in  Hidden  v.  Jordan,  21  Cal".,  92.  Equity  will  enforce  a  parol  agree- 
ment for  a  joint  interest  in  land,  at  the  instance  of  a  party  to  it  who  has  fulfilled 
his  part  by  full  payment,  and  where  it  may  be  inferred  that  fraud  would  result 
from  a  refusal  to  decree  specific  performance.  Fannin  v.  McMullan,  2  Abb.  Pr. 
N.  S.,  224;  Ryan  v.  Dox,  34  N.  Y.,  307;  36  lb.,  511.  Where  two  parties  entered 
into  an  agreement  for  the  purchase  of  a  parcel  of  land,  each  to  furnish  one 
moiety  of  the  purchase  money,  but  one  of  the  parties  to  enter  the  land  in  his  own 
name,  and  hold  the  title  to  one-half  interest  in  trust  for  the  other,  it  was  held 
that  the  agreement  was  not  within  the  statute  of  frauds,  but  that  it  could  be  en- 
forced in  equity,  if  the  party  seeking  to  enforce  it  had  carried  out  in  good  faith 
his  part  of  the  contract.     Nelson  v.  W^orrail,  20  Iowa,  469. 

"^  Whiting  V.  Gould,  2  Wis.,  552. 

3  Lloyd  V.  Spillet,  2  Atk.,  148 ;  Crop  v.  Norton,  9  Mod.,  233  ;  Dale  v.  Hamil- 
ton, 5  Hare,  369  ;  Wray  v.  Steele,  2  V.  &  B..  388  ;  Benbow  v.  Townsend,  i  M. 
&  K.,  506;  Kisler  v.  Kisler,  2  Watts,  323;  Larkins  v.  Rhodes,  5  Porter,  195  ; 
Brothers  v.  Porter,  6  B.  Mon.,  106 ;  Botsford  v.  Burr,  2  Johns  Ch.,  405  ;  Rogers 
V.  Murray,  3  Paige  Ch.,  390  ;  Ross  v.  Hegeman,  2  Edwards  Ch.,  373  ;  Smith  v. 
Burnham,  3  Sumner,  435  ;  Williams  v.  Brown,  14  III,  2co  ;  Buck  v.  Swazey,  35 
Me.,  41  ;  Livermore  v.  Aldrich,  5  Cush.,  435. 


340  STATUTE    OF    FRAUDS.  §   25O. 

which  a  trust  may  legally  result.'  If  real  estate  is  con- 
veyed to  A.,  and  the  purchase  money  is  paid  by  B.,  A. 
holds  the  land  in  trust  for  B.  But  if,  in  such  case,  B.  pays 
only  a  part  of  the  purchase  money,  and  there  is  no  agree- 
ment between  A.  and  B.,  there  is  a  resulting  trust  in  favor 
of  B.  for  an  interest,  in  the  land  proportioned  to  the 
amount  of  purchase  money  paid  by  him.  In  the  latter 
case,  however,  a  parol  agreement  may  be  shown,  which 
shall  entitle  B.  to  the  entire  estate  in  the  land."  Where 
the  plaintiff  and  defendant  verbally  agreed  to  purchase  a 
farm  on  their  joint  account,  and  the  plaintiff  paid  for  his 
share,  but  the  defendant  procured  a  conveyance  of  it  to 
himself,  it  was  held  that  the  plaintiff  was  entitled  to  an  un- 
divided half  of  the  farm,  as  a  resulting  trust.'  In  all  cases 
of  fraud,  and  where  transactions  have  been  carried  on 
mala  fide,  there  is  a  resulting  trust  by  operation  of  law. 
In  an  early  case  in  Georgia,  the  court  said  :  "  We  recognize 
the  doctrine  then,  that  a  court  of  equity  will  not  permit 
the  statute  of  frauds  to  be  set  up  as  a  defence  by  a  party 
infected  with  fraud ;  and  that  parol  trusts  of  real  estate 
may  be  established  in  direct  contradiction  to  the  statute,  on 
the  ground  of  fraud  ;  and  that  whenever  a  case  of  fraud  is 


'  Parol  evidence  is  admissible  to  show  an  implied  or  resulting  trust  in  the  pur- 
chase of  real  estate,  growing  out  of  the  relation  in  which  the  parties  stood 
toward  each  other  as  principal  and  agent,  and  from  the  fact  that  the  only  con- 
sideration advanced  in  payment  for  the  land  was  paid  by  the  alleged  principal. 
Church  V.  Sterling,  16  Conn.,  388. 

^  Hidden  v.  Jordan,  21  Cal,  92.  A  person  intending  to  make  a  donation  to 
another,  and  who  clearly  declares  his  purpose,  and  transfers  the  title,  need  not 
necessarily  part  with  the  possession,  provided  he  declares  himself,  in  proper 
form,  to  be  a  trustee  holding  possession  for  the  donee.  Estate  of  Webb,  49 
Cal.,  541 :  "  It  is  certainly  true  that  a  court  of  equity  will  lend  no  assistance 
toward  perfecting  a  voluntary  contract  or  agreement  for  the  creation  of  a  trust, 
nor  regard  it  as  binding,  so  long  as  it  remains  executory.  But  it  is  equally  true 
that  if  such  an  agreement  or  contract  be  executed  by  a  conveyance  of  property 
in  trust,  so  that  nothing  remains  to  be  done  by  the  grantor  or  donor  to  complete 
the  transfer  of  title,  the  relation  of  trustee  and  cestui  que  trust  is  deemed  to  be 
established,  and  the  equitable  rights  and  interests  arising  out  of  the  conveyance, 
though  made  without  consideration,  will  be  enforced  in  chancery."  Stone  v. 
Hackett,  12  Gray,  227,  per  Bigelow,  J.  And  see  Kekewich  v.  Manning,  i  De 
G.  M.  &  G.,  176 ;  Jones  v.  Lock,  L.  R.  i,  Ch.  25  ;  Wason  v.  Colburn,  99  Mass., 
342. 

'  Traphagen  v.  Burt,  67  N.  Y.,  30.     And  see  Chester  v.  Dickerson,  54  N.  Y.,  i. 


§  251.   GROUND  ON  WHICH  PAROL  TRUST  UPHELD.     34I 

made  by  the  bill,  parol  evidence  will  be  received  for  the 
purpose  of  sustaining  the  case,  even  though  the  effect  of 
such  evidence  be  to  alter  or  vary  a  written  instrument,  and 
although  the  benefit  of  the  statute  be  insisted  on  by  the 
defendant.'" 

§  2.51.  Gj^oicnd  071  which  parol  ti^itst  upheld. — A  trust 
may  arise  ex  malejicio,  in  which  equity  turns  the  fraudulent 
procurer  of  the  legal  title  into  a  trustee  to  get  at  him  ;  and 
such  a  trust  may  be  raised  from  the  surreptitious  procure- 
ment of  a  devise."  Equity  does  not  intervene  to  uphold  or 
enforce  a  parol  trust,  but  to  relieve  against  the  fraud 
which  has  been  perpetrated,  by  raising  an  implied  trust ; 
and  it  will  treat  the  person  who  perpetrated  the  fraud  as  a 
trustee,  not  by  virtue  of  the  parol  agreement,  but  as  a 
trustee  ex  malejicio  on  account  of  the  fraud.'  Where  A., 
having  a  contract  for  the  purchase  of  land,  agrees  by  parol 
with  B.  that  he  shall  pay  the  purchase  money  and  hold  the 
land  as  security  for  the  amount  advanced.  A,,  on  repaying 
B.  the  money,  is  entitled  to  a  conveyance.'  C.  purchased 
land,  and  borrowed  money  to  pay  the  purchase  price,  ver- 
bally agreeing  with  the  lender  to  execute  a  mortgage 
thereon,  to  secure  such  money  ;  but,  on  receiving  the  deed, 
conveyed  the  property  to  his,  C.'s,  wife,  she  knowing  of 
such  agreement.  Held,  that  the  agreement  was  without 
the  statute,  and  that  the  lender  was  entitled  to  have  the 

'  Miller  v.  Gotten,  5  Ga.,  346.  But  "unless  there  be  something  in  the  trans- 
action more  than  is  implied  from  the  violation  of  a  parol  agreement,  equity  will 
not  decree  the  purchaser  to  be  a  trustee.  And  the  distinction  is  indispensable, 
otherwise  there  would  be  a  repeal  of  the  statute,  under  the  pretence  of  prevent- 
ing fraud,  by  decreeing  an  express  trust,  which  would  be  introductive  of  the 
very  evils  the  statute  was  designed  to  prevent."  McGuUoch  v.  Gowher,  5  Watts 
&  Serg.,  427,  per  Woodward,  J. 

2  Hoge  v.  Hoge,  i  Watts,  163  ;  Hunt  v.  Turner,  9  Texas,  385  ;  Mundorff  v. 
Howard,  4  Md.,  459. 

'^  Wheeler  v.  Reynolds,  66  N.  Y.,  227. 

*  Gousins  V.  Wall,  3  Jones  Eq.,  43;  Goninger  v.  Summit,  2  lb.,  513.  See 
Hodges  v.  Hovvard,  5  R.  I.,  149;  Gameron  v.  Ward,  8  Ga.,  245;  Jones  v. 
M'Dougal,  32  Miss.,  179;  Hidden  v.  Jordan,  supra.  The  statute  requiring 
contracts  for  leasing  or  agreeing  to  lease  lands  to  be  in  writing,  does  not  apply 
when  one  agrees  by  parol  to  take  a  lease  of  land  for  another,  but  takes  the  land 
in  his  own  name.  In  such  case,  equity  will  enforce  the  agreement  and  compel 
him  to  make  title  to  the  principal,     Hargrave  v.  King,  5  I  red.  Eq.,  430, 


342  STATUTE    OF    FRAUDS.  §   25 1. 

mortgage  executed,  regardless  of  the  fact  that  he  took  C.'s 
note  for  part  of  the  purchase  money/  A.  having  a  con- 
tract for  the  purchase  of  land  from  B.,  and  having  occu- 
pied the  land  for  several  years,  and  made  valuable  improve- 
ments on  it  under  the  contract,  which  had  a  year  to  run, 
proposed  to  C.  that  the  latter  should  let  him  have  the 
amount  then  due  on  the  contract,  and  give  him  five  years 
in  which  to  repay  the  same  with  interest,  taking  a  convey- 
ance of  the  land  from  B.  as  security,  and  entering  into  a 
written  contract  with  A.  for  the  sale  of  the  land  to  him 
upon  repayment  of  the  sum  advanced,  pursuant  to  the  ar- 
rangement. C.  accepted  A.'s  proposition,  let  him  have  the 
money,  and  took  a  conveyance  of  the  land  from  B.  ;  but 
afterward  refused  to  carry  out  his  agreement  to  give  A.  a 
contract  of  sale,  denying  that  he  ever  made  such  an  agree- 
ment, and  claiming  to  hold  the  land  absolutely.  It  was 
held  that  the  statute  did  not  prevent  the  enforcement  of 
the  parol  agreement.^ 

'  Cole  V.  Cole,  41  Md.,  301.  Although,  where  one  person  hears  another  bar- 
gain with  a  third  person  for  an  estate,  and  sees  money  paid  out  without  making 
known  his  title,  the  rule  of  equity  is,  that  he  shall  not  be  permitted  to  disturb 
such  third  person  in  the  enjoyment  of  the  estate,  yet  this  rule  does  not  apply  to 
cases  of  parol  contract,  when  all  the  parties  fully  understand  the  state  of  title. 
Wilton  V.  Harwood,  23  M-e.,  131. 

^  McBurney  v.  Wellman,  42  Barb.,  390.  Parol  evidence  is  admissible  to  show 
the  circumstances  under  which  a  deed  was  given,  and  the  relation  of  the  parties 
to  it  and  to  each  other  in  respect  to  it.  Where  therefore  A.  undertook,  as  the 
agent  of  B.,  to  sell  certain  real  estate,  and,  to  facilitate  such  sale,  B.  deeded  the 
land  to  A.,  without  the  payment  of  any  consideration  by  A.,  who  took  the  con- 
veyance as  the  agent  of  B.,  and  having  sold  the  land,  refused  to  hand  over  the 
proceeds  of  the  sale  to  B.,  it  was  held  that  the  statute  of  frauds  did  not  prevent 
B.  from  proving  the  nature  and  extent  of  A.'s  agency.  Collins  v.  Tillou,  26 
Conn.,  368.  And  the  same  was  held  where  a  deed  absolute  on  its  face  was  exe- 
cuted under  a  promise  by  the  grantee  that  he  would  hold  the  land  conveyed  for 
the  use  of  the  heirs  of  the  grantor.  Kennedy  v.  Kennedy,  2  Ala,  571.  See 
Lynch  v.  Lynch,  i  Paige  Ch.,  147  ;  Sweet  v.  Jacocks,  6  lb.,  355  ;  Martin  v.  Mar- 
tin, 16  B.  Mon.,  8;  Blodgett  v.  Hildreth,  103  Mass.,  484.  In  Hutchins  v.  Lee, 
I  Atk.,  447,  a  bill  was  filed  to  set  aside  an  assignment  of  a  leasehold  estate,  and 
all  other  the  estate  and  effects  of  the  plaintiff,  upon  a  suggestion  that  the  estate 
was  never  intended  as  an  absolute  assignment  for  the  benefit  of  the  defendant, 
but  made  only  to  ease  the  plaintiff  of  the  trouble  and  care  of  managing  his  own 
concerns  at  that  time  (being  then  under  great  infirmities  of  body  and  mmd),  and 
subject  to  a  trust  for  the  benefit  of  the  plaintiff  if  he  should  afterward  be  in  a 
capacity  of  taking  care  of  his  own  affairs.  The  assignment  was  absolute  in  its 
terms.  The  lord  chancellor  held,  that,  although  there  cannot  be  a  verbal  dec- 
laration of  a  trust  since  the  statute  of  29  Chas.  II.,  yet  parol  evidence  is  proper 
in  avoidance  of  a  fraud  which  the  defendant  intended  to  practice  on  the  plaintiff 


§252.  FRAUD    OF    PURCHASER    AT    PUBLIC    SALE.  343 

§  252.  Fra7id  of  purchaser  at  public  sale. — A  parol 
agreement  to  purchase  for  the  defendant  in  execution  will 
not  be  enforced  in  equity,  unless  it  is  accompanied  by  cir- 
cumstances of  fraud,  or  has  been  made  use  of  by  the  pur- 
chaser to  obtain  the  property  for  an  inadequate  considera- 
tion, or  to  oppress  the  defendant ;  and  this  must  be  proved 
by  the  clearest  evidence.'  The  fraud  which  will  convert 
the  purchaser  at  a  sheriff's  sale  into  a  trustee  ex  maleficio, 
must  have  been  fraud  at  the  time  of  the  sale/  A  verbal 
agreement  entered  into  by  A.  and  B.  with  an  execution 
debtor,  whose  land  is  about  to  be  sold  by  the  sheriff,  to 
purchase  it  with  their  own  funds  and  hold  it  for  his  bene- 
fit, is  equivalent  to  a  loan  of  money  and  a  taking  of  the 
title  as  security  for  its  repayment ;  or  an  agreement  by  one 
person  to  purchase  land  for  the  benefit  of  another,  under 
circumstances  which  would  amount  to  a  fraud  upon  the 
latter,  if  the  former  were  allowed  to  repudiate  his  promise, 
and  therefore   is  not  within  the  statute  of  frauds/     A.'s 


by  attempting'  to  deprive  him  of  the  benefit  of  the  statute.  A  party  cannot  set 
up  a  parol  trust  when  the  design  is  to  delay,  hinder,  or  defraud  creditors.  Mur- 
phy V.  Hubert,  16  Pa.  St.,  50;  S.  C,  7  lb.,  420;  Hills  v.  Elliott,  12  Mass.,  26. 

'  Walker  v.  Hill,  21  N.  J.  Eq.,  191.  In  Soggins  v.  Heard,  31  Miss.,  428,  the 
court  said:  "It  is  not  now  an  open  question,  that  when  a  party  agrees  before 
the  sale  to  purchase  property  about  to  be  sold,  under  an  execution  against  a 
party,  and  to  give  such  party  the  benefit  of  the  purchase,  the  agreement  is  bind- 
ing and  will  be  enforced.  The  defendant,  upon  the  faith  of  such  an  agreement, 
may  have  ceased  his  efforts  to  raise  the  money  for  the  purpose  of  paying  off.the 
execution,  and  thus  preventing  a  sale  of  his  property.  It  will  not  do  to  say  that 
the  party  promising  was  moved  merely  by  friendly  or  benevolent  considerations, 
and  may,  therefore,  at  his  option,  decline  a  compliance  with  his  agreement. 
Such  considerations  constitute  the  foundation  of  almost  every  trust,  and  the 
trustee  should  be  held  to  account,  as  nearly  as  possible,  in  the  same  spirit  in 
which  he  originally  contracted.  But  it  is  said  that  the  agret^ment,  if  in  fact  made, 
was  void  under  the  statute  of  frauds.  The  statute  has  reference  alone  to  a  sale 
of  lands,  and  not  to  a  contract  to  purchase  by  one  person  for  the  benefit  of  an- 
other." 

^  Wheeler  v.  Reynolds,  66  N.  Y.,  227 

^  Sandfoss  V.  Jones,  35  Cal.,  481.  In  Keith  v.  Purvis,  4  Dessaus  Eq.,  114,  a 
creditor  induced  his  debtor's  agent  not  to  bid  at  a  sale  of  his  debtor's  land,  by 
promising  to  give  the  debtor  time  to  pay  the  debt,  and  then  to  reconvey  the 
land.  This  agreement  was  disclosed  at  the  sale  and  prevented  other  bids, 
whereby  the  creditor  bought  the  land  for  one-third  of  its  value,  but  afterward 
refusing  to  reconvey,  the  dsbtor  filed  a  bill  for  relief.  To  this  it  was  objected 
that  the  agreement  was  void  by  the  statute  of  frauds,  but  the  court  held  that  if 
the  agreement  was  void,  the  creditor  must  surrender  his  advantage  under  it,  and 
be  liable  to  make  good  the  loss  sustained  by  the  adverse  party  from  his  conduct. 


344  STATUTE    OF    FRAUDS.  §   253. 

land  having  been  sold  for  taxes  and  boui^ht  by  B.,  it  was 
verbally  agreed  between  A.  and  B.  that  the  latter,  upon 
the  payment  by  the  former  of  the  amount  of  his  bid,  with 
twenty-five  per  cent,  interest  thereon,  would  assign  the 
certificate  of  said  sale  to  A.  A.,  relying  upon  B.'s  promise, 
allowed  the  time  for  redemption  to  expire  without  redeem- 
ing, and  B.  having  obtained  a  deed  of  the  land  from  the 
auditor-general,  refused  to  convey  the  land  to  A.  upon  his 
offering  to  fulfil  his  part  of  the  agreement.  Held,  that  a 
fraud  had  been  perpetrated  upon  A.,  against  which  he  was 
entitled  to  relief.* 

§  253.  Fraudulent  p^ir chase  of  rnoi^tgaged  p7'operty. — 
Where  it  is  verbally  agreed  between  the  vendor  of  land  at 
a  judicial  sale  and  the  purchaser,  that  the  purchaser's  rights 
shall  be  only  those  of  a  mortgagee,  and  he  fraudulently 
violates  the  contract  by  obtaining  an  absolute  deed  to  him- 
self, and  selling  the  land  to  a  third  person  who  has  notice 
of  the  agreement,  the  purchaser  and  his  vendee  hold  the 
title  in  trust  for  the  original  owner."  "  But  even  in  this 
class  of  cases,  so  important  is  it  to  maintain  the  utmost 
confidence  in  the  efficiency  of  judicial  sales,  the  purchaser 
should  be  protected  against  all  pretences  of  a  trust  by 
parol,  unless  his  mala  fides  be  prov^ed  by  the  clearest  and 
most  complete  evidence.  But  where  such  demonstrative 
proof  exists,  and  where  the  contract  between  the  defendant 
in  execution  and  the  purchaser  is  not  of  such  a  character 
as  to  affect  injuriously  the  rights  of  creditors,  a  court  of 
equity  will  frustrate  the  contemplated  fraud  by  enforcing 
the  contract  specifically  between  the  parties."^     A.  having 

"Can  it  be  tolerated,"  said  the  court,  "that  a  creditor  shall,  at  a  sale  of  his 
debtor's  property,  lull  him  to  sleep  and  keep  off  other  purchasers,  by  an  agree- 
ment under  which  he  buys  in  the  land  for  a  small  sum  much  below  its  value,  and 
then  that  he  should  declare  that  the  agreement  was  void  under  the  statute  of 
frauds,  and  that  the  other  party  should  have  no  benefit  from  the  agreement, 
whilst  he  reaped  all  the  fruits?  Surely  not.  Courts  of  justice  would  be  blind, 
indeed,  if  they  could  permit  such  a  state  of  things." 

'  Laing  v.  McKee,  13  Mich.,  124,  Martin,  Ch.  J.,  dissenting. 

'  Green  v.  Ball.  4  Bush,  586.  And  see  Combs  v.  Little,  3  Green  Ch.,  310; 
Marlatt  v.  Warwick,  18  N.  J.  Eq.,  108  ;  S.  C,  19  lb.,  439. 

*  Beasley,  C.  J.,  in  Merritt  v.  Brown,  21  N.  J.  Eq.,  401. 


§  2  54-   PAROL  REFORMATION  OF  WRFfTEN  INSTRUMENT.   345 

a  mortcrao-e  on  certain  real  estate  which  was  about  to  be 
sold  under  a  judgment  in  favor  of  B.,  entered  into  a  verbal 
agreement  with  B,  that  he  should  buy  the  property,  and, 
upon  payment  to  him  of  his  debt,  and  certain  rents,  he 
should  convey  the  land  to  A.  Held  that  B.  could  not  re- 
tain the  property  thus  acquired,  relying  on  the  statute  of 
frauds/ 

§  254.  Parol  rcfo7^mation  of  written  instriiment. — A 
court  of  equity  may  carry  the  intention  of  the  parties  into 
execution  where  the  written  agreement  has  failed  to  ex- 
press it."  A  party  may  prove  by  parol,  a  mistake  in  a  writ- 
ten agreement,  and  have  it  rectified  and  then  specifically 
enforced.  But  it  must  be  conclusively  shown  that  a  mis- 
take was  committed,  and  that  the  written  agreement  does 
not  conform  to  the  intention  of  the  parties  ;  and  the  cor- 
rection proposed  to  be  made  must  be  established  by  equally 
conclusive  proof.'  Parol  evidence  is  admissible  to  show 
that  an  absolute  deed  was  intended  as  a  mortgage,  and  that 
the  defeasance  had  been  omitted,  or  destroyed,  by  fraud  or 
mistake  ;  and  it  is  the  same  if  it  be  omitted  by  design  upon 
mutual  (Jonfidence  between  the  parties.*  Although  parol 
evidence  is  not  admissible  to  change  an  absolute  convey- 
ance into  a  trust  ;  yet,  where  the  contract  agreed  upon  has 
not  been  committed  to  writing  through  fraud,  accident,  or 
mistake,  a  trust  may  be  proved  by  parol.'  If  one  of  the 
contracting  parties  insists  on  a  certain  stipulation,  and  de- 
sires it  to  be  made  a  part  of  the  written  agreement,  and  the 
other,  by  his  promise  to  conform  to  it  as  if  it  was  inserted 
in  the  written  agreement,  prevents  its  insertion,  this  is  a 
fraud,  and  equity  will  enforce  the  agreement  as  if  the 
stipulation  had  been  inserted."     "Where  it  appears  that  the 


'  Rose  V.  Bates,  12  Mo.,  30. 

'  Hunt  V.  Rosmanier,  8  Wheat.,  174  ;  Tyson  v.  Passmore,  2  Pa.  St.,  122. 

3  Philpott  V.  Elliott,  4  Md.  Ch.,  273.     Stepost,  §§  368,  369. 

*  Taylor  v.  Luther,  2  Sumner,  228  ;  Artz  v.  Grove,  21  Md.,  456. 

*  Barnard  v.  Flinn,  8  Ind.,  204.  *  Overton  v.  Tracy,  14  Serg.  &  R.,  326. 


34^  STATUTE    OF    FRAUDS.  §   254. 

understanding,  at  the  time  of  the  verbal  promise,  was,  by 
a  writing  to  comply  with  the  provisions  of  the  statute  of 
frauds,  it  is  something  more  than  a  mere  \'erbal  promise. 
The  opposite  party  relies  upon  the  special  stipulation  to 
reduce  it  to  writing,  and  thus  make  him  secure.  A  chan- 
cellor would  decree  its  specific  performance.  If,  in  confi- 
dence that  such  writing  will  be  executed,  the  legal  title  is 
acquired,  it  is  a  fraud  in  the  purchaser  to  refuse  to  do  what 
was  promised,  and  claim  to  hold  discharged  of  it,  which 
will  constitute  him  a  trustee  ex  maleficioy  Where  the 
bill  alleged  that  the  defendants  promised  to  insert  in  the 
deed  from  them  to  the  plaintiff  a  covenant  that  the  land 
conveyed  contained  seven  acres,  and,  if  it  fell  short  of  that 
quantity,  that  they  would  make  good  the  deficiency,  and 
that  a  deed  was  drawn  with  such  a  covenant,  but  that  the 
defendants  erased  it  fraudulently  without  the  plaintiff's 
knowledge,  and  induced  him  by  false  representations  to  ac- 
cept the  deed,  supposing  that  the  covenant  was  contained 
therein,  it  was  held  that  the  plaintiff  was  entitled  to  have 
the  deed  reformed  by  inserting  the  covenant.''  When, 
however,  "  the  proposed  reformation  of  an  instrufnent  in- 
volves the  specific  enforcement  of  an  oral  agreement  within 
the  statute  of  frauds  ;  or  when  the  term  sought  to  be  added 
w^ould  so  modify  the  instrument  as  to  make  it  operate  to 
convey  an  interest  or  secure  a  right  which  can  only  be  con- 
veyed or  secured  through  an  instrument  in  writing,  and  for 
which  no  writing  has  ever  existed,  the  statute  of  frauds  is 
a  sufficient  answer  to  such  a  proceeding ;  unless  the  plea  of 
the  statute  can  be  met  by  some  ground  of  estoppel  to  de- 
prive the  party  of  the  right  to  set  up  the  defence.  The 
fact  that  the  omission  or  defect  in  the  writing,  by  reason  of 
which  it  failed  to  convey  the  land,  or  express  the  obligation 
which  it  is  sought  to  make  it  convey  or  express,  was  oc- 
casioned by  mistake,  or  by  deceit  and  fraud,  will  not  alone 


'  Wolford  V.  Herrington,  74  Pa.  St.,  311,  per  Sharswood,  J. 
"  Metcalf  V.  Putnam,  9  Allen,  97, 


§   254-       PAROL  REFORMATION  OF  WRITTEN  INSTRUMENT.     347 

constitute  such  an  estoppel.  There  must  occur,  also,  some 
change  in  the  condition  or  position  of  the  party  seeking 
relief,  by  reason  of  being  induced  to  enter  upon  the  execu- 
tion of  the  agreement,  or  to  do  acts  upon  the  faith  of  it  as 
if  it  were  executed,  with  the  knowledge  and  acquiescence 
of  the  other  party,  either  express  or  implied,  for  which  he 
would  be  left  without  redress  if  the  agreement  were  to  be 
defeated."' 


'  Wells,  J.,  in  Glass  v.  Hulbert,  102  Mass.,  24.     Where  there  is  a  written  con- 
tract in  relation  to  land,  and  some  of  the  terms  or  provisions  in   the  verbal 
agreement  of  the  parties  are  not  included  in  the  writing,  but  omitted  by  design, 
even  on  the  express  understanding-  that  such  provisions  should  be  carried  into 
effect  in  the  same  manner  as  if  they  had  constituted  part  of  the  written  instru- 
ment, there  is  no  fraud,  undue  influence,  surprise  or  mistake,  either  in  the  making 
of  such  contract,  or  in  reducing  it  to  writing ;  parol  evidence  alone  will  not  be 
admitted  to  enforce  the  omitted  provisions,  or  for  the  purpose  of  contradicting, 
adding  to,  or  varying  the  written  instrument,  although  subsequently  to  its  exe- 
cution, one  of  the  parties  has  fraudulently  refused  to  comply  with  the  omitted 
provisions,  and  in  open  violation  of  good  faith  and  fair  dealing,  insists  upon  his 
right,  under  the  statute  of  frauds,  to  have  the  contract  as  written,  carried  into 
effect.    F.ccleston,  J.,  in  Wilson  v.  Watts,  9  Md.,  356.    See  Heth  v.  Wooldridge, 
6  Rand,  605;  Chetwood  v.  Brittan,  i  Green  Ch.,  438;  Luckett  v.  Williams,  37 
Mo.,  388  ;  Espy  v.  Anderson,  14  Pa.  St.,  308.   Where  an  agreement  was  entered 
into  for  the  conveyance  of  real  estate  upon  the  payment  of  a  certain  sum  of  money, 
and  the  execution  and  delivery  of  a  mortgage  for  the  balance,  and  subsequently 
a  parol  agreement  was  made  between  the  parties  for  the  conveyance  of  a  less 
quantity  than  was  called  for  by  the  written  agreement,  it  was  held  that  specific 
performance  of  the  original  agreement  would  be  decreed  upon  the  tender  of  the 
money  and  the  mortgage.     Merkle  v.  Wehrheim,  32  111.,  534.     A.  gave  a  bond 
to  convey  certain  land  to  B.  when  demanded  by  him,  and  B.  bound  himself  to 
pay  for  the  same  within  twelve  months  from  the  date  of  the  obligation.     On  a 
bill  for  specific  performance,  a  tender  within  the  stipulated  time,  and  a  refusal  to 
convey,  were  proved.     The  answer  alleged  an  agreement  that  B.  was  to  erect 
certain  works  on  the  land,  and,  that  on  failure  to  do  this,  the  land  was  to  revert 
to  A.     Held  that  parol  evidence  was  not  admissible  to  add  a  new  condition  to 
the  bond,  and  that  inadequacy  of  price  alone,  no  fraud  being  shown,  was  not  a 
sufficient  reason  to  set  aside  the  bond.   January  v.  Martin,  i  Bibb.,  586.    Where 
the  defendant  agreed  in  writing  to  convey  to  the  plaintiff,  certain  real  estate, 
upon  the  payment  by  him  of  notes  given  for  the  purchase  money,  and  afterward 
verbally  promised  to  execute  and  deliver  the  conveyance,  upon  the  payment  of 
the  notes  before  they  fell  due,  it  was  held  that  a  suit  for  the  specific  performance 
of  the  contract,  as  modified  by  the  verbal  promise,  could  not  be  maintained. 
Brooks  V.  Wheelock,  1 1  Pick.,  438.     More  latitude  will  be  given  the  respondent 
in  the  introduction  of  verbal  stipulations  varying  the  contract,  than  will  be  given 
to  the  petitioner.     Ouinn  v.  Roath,  37  Conn.,  16.     The  evidence  offered  in  this 
case,  and  which  it  was  held  should  have  been  admitted,  was  for  the  purpose  of 
proving  that  before  the  writing  was  completed  and  signed,  the  parties  verbally 
agreed  that  unless  the  payment  by  the  petitioner  of  $25  parcel  of  the  purchase 
money  was  made  on  the  ist  of  April,  the  contract  was  to  be  void.     \Vhen  the 
parties  agree  by  the  writing  itself,  that  parol  evidence  may  establish  terms  and 
conditions  not  specified  in  the  agreement,  such  evidence  is  admissible  because 
the  parties  have  agreed  to  admit  it.     Fowler  v.  Redican,  52  111.,  405. 


348  STATUTE    OF    FRAUDS.  §   255. 

^  255.  Where  property  is  obtained  by  fraud . — The  de- 
fendant will  not  be  permitted  to  avail  himself  of  the  statute 
of  frauds  to  protect  his  legal  title  to  land  in  which  the 
plaintiff  had  an  equitable  interest,  when  the  defendant  ac- 
quired his  title  by  purchase  at  a  judicial  sale  for  half  the 
value  of  the  land  upon  his  representations,  calculated  to 
stifle  competition  among  bidders,  that  he  was  buying  for 
the  benefit  of  the  plaintiff."  And  where  competition  is 
fraudulently  destroyed  or  reduced,  it  matters  not  whether 
or  not  there  was  an  agreement  for  the  benefit  of  the  debtor." 
If  the  defendant  entered  into  the  arrangement  with  the 
premeditated  design  to  mislead  the  confidence  of  the  plain- 
tiff, and,  by  practicing  upon  his  credulity  and  want  of  cau- 
tion, to  get  the  title  of  property  into  his  own  hands,  and 
then  convert  it  into  the  means  of  oppressively  using  it  for 
his  own  benefit,  the  case  would  be  out  of  the  statute  of 
frauds.'  Where  the  plaintiff  claimed  moneys  obtained  by 
the  defendant  under  pretence  of  paying  for  land  purchased 
on  joint  account,  but  which  w^ere  not  in  fact  used  for  that 
purpose,  it  w^as  held  that  the  defendant  could  not  avail  him- 
self of  the  defence  that  the  agreement  was  void  under  the 
statute  of  frauds.' 

'  Kinard  v.  Hiers,  3  Rich.  Eq.,  423.     See  Teague  v.  Fowler,  56  Ind.,  569. 

^  McDonald  v.  May,  iRich.  Eq.,  95  ;  Schmidt  v.  Gatewood,  2  lb.,  162.  Cer- 
tain land  owned  by  two  persons  in  common  having  been  put  up  for  sale  at  auc- 
tion, the  agent  of  one  of  them,  without  the  knowledge  or  consent  of  the  other, 
bid  off  a  portion  of  the  land  and  signed  a  memorandum  of  purchase.  In  a  suit 
in  equity  by  the  other  tenant  in  common  to  compel  the  purchaser  to  accept  a 
deed  from  him  of  an  undivided  half  of  the  land  so  bid  off,  and  to  pay  the  plain- 
tiff one-half  of  the  price  thereof,  it  was  held  that  as  there  was  no  contract  in 
writing  between  the  plaintiff  and  defendant  for  the  sale  and  purchase  of  the  land 
in  question,  or  any  memorandum  of  such  a  contract,  the  bill  must  be  dismissed. 
Gill  V.  Bicknell,  2'Cush.,  355.  "Whether  one  of  two  tenants  in  common  may 
bid  at  such  a  sale,  in  competition  with  strangers,  and  without  notice  to  that  effect 
given  to  bidders,  is  doubtful ;  but  in  the  case  of  a  single  owner,  the  bidding 
through  a  third  person,  w-ithout  notice,  would  be  fraudulent.  Where  there  are 
several  owners,  as,  for  instance,  the  members  of  a  joint  stock  land  company,  if  it 
were  distinctly  stated  in  the  terms  of  sale  that  each  member  might  bid  on  his 
own  individual  account,  it  being  understood  to  be  bo7ia  fide,  and,  as  between 
himself  and  his  co-tenants,  an  actual  purchase  on  his  several  account,  to  be  taken 
and  paid  for  by  him,  as  by  other  bidders,  such  notice  would  probably  avoid  all 
imputation  of  deception,  and  the  sale  be  therefore  valid."     lb.,  per  Shaw,  C.  J. 

*  Jenkins  v.  Eldredge,  2  Story,  181,  per  Story,  J. 

*  Willink  v.  Vanderveer,  i  Barb.,  599. 


§   256.       PAROL  AGREEMENT  WITHOUT  CONSIDERATION.  349 

§  256.  Where  parol  agreement  is  without  considera- 
tion.— A  contract  has  never  been  taken  out  of  the  statute 
in  favor  of  a  party  who  has  no  existing  interest  in  the  prop- 
erty, who  has  done  no  act  of  part  performance,  and  w^ho 
has  parted  with  nothing  under  the  contract,  simply  upon 
the  ground  that  the  other  party  was  guilty  of  a  fraud  in  re- 
fusing to  perform  his  part  of  the  agreement.'  This  princi- 
ple was  illustrated  in  the  following  case.  The  plaintiff  and 
defendant  being  present  at  an  auction  sale  of  real  estate, 
entered  into  a  verbal  arrangement  that  the  defendant  should 
bid  off  the  property  in  his  own  name,  pay  the  sums  to  the 
auctioneer  and  vendor  required  by  the  conditions  of  sale, 
and  enter  into  a  written  contract  for  the  purchase  of  the 
land,  in  accordance  with  his  bid  and  the  terms  of  sale,  and 
that  the  land  should  be  conveyed  to  both  as  tenants  in  com- 
mon ;  that  the  plaintiff  should  presently  refund  to  the  de- 
fendant the  one-half  of  the  money  paid  by  him  ;  and  that 
both  parties,  upon  the  receipt  of  the  conveyance,  should 
join  in  the  bonds  and  mortgages  required  to  be  given.  The 
defendant,  having  bid  off  the  land,  and  taken  a  contract,  it 
was  held  that  the  plaintiff  could  not  compel  a  conveyance 
pursuant  to  the  agreement.''  The  same  was  held,  where 
three  persons  verbally  agreed  that  if  either  should  be  the 
purchaser  of  a  lot  of  land  at  a  sale,  they  should  all  be  equally 
interested,  and,  on  receipt  of  the  deed  by  the  purchaser,  he 
should  convey  one-third  to  each  of  his  associates ;  and  the 
purchaser  having  refused  to  convey,  one  of  the  parties  ten- 
dered one-third  of  the  purchase  money,  and  then  brought  a 

'  A  resulting  trust  will  not  in  general  arise  from  the  subsequent  payment  by 
the  party  setting  up  the  trust.  Graves  v.  Dugan,  6  Dana,  331  ;  Botsford  v.  Burr, 
2  Johns  Ch.,  405  ;  Jackson  v.  Moore,  6  Cowen,  706  ;  Rogers  v.  Murray,  3  Paige 
Ch.,  390;  Hollinda  v.  Shoop,  4  Md.,  465  ;  Conner  v.  Lewis,  16  Me.,  268  ;  Buck 
V.  Pike,  II  lb.,  9;  Pinnock  v.  Clough,  16  Vt.,  500;  Alexander  v.  Tarns,  13  111., 
221.  But  this  rule,  as  has  been  shown,  does  not  apply,  where  the  price  paid  by 
the  party  taking  the  conveyance  is  loaned  to  or  advanced  for  the  benefit  of  the 
party  claiming  the  property.  Bartlett  v,  Pickersgill,  i  Ed.,  515;  Lathrop  v.  Hoyt, 
7  Barb.,  59 ;  Reeve  v.  Strong,  14  111.,  94. 

**  Levy  V.  Brush,  45  N.  Y.,  584.  And  see  Barnet  v.  Dougherty,  32  Pa.  St.,  371  ; 
Hogg  v.  Wilkins,  i  Grant  Pa.,  6"]  \  Patterson  v.  Horn,  lb.,  301  ;  Campbell  v. 
Campbell,  2  Jones  Eq.,  364 ;  Wallace  v.  Brown,  10  N.  J.  Eq.,  308 ;  Dodd  v. 
Wakeman,  26  lb.,  484. 


350  STATUTE    OF    FRAUDS.  §   '^57- 

suit  to  compel  a  conveyance.'  So,  where  a  mortgagee  agreed, 
by  parol,  to  bid  in  the  property  for  the  mortgagor,  but 
bought  it  for  himself,  and  there  were  no  circumstances  of 
fraud,  it  was  held  that  the  agreement  could  not  be  enforced." 
In  another  case,  the  bill  having  stated  that  the  plaintiffs 
were  induced,  by  the  fraudulent  representations  of  the  de- 
fendant, to  convey  to  him  certain  land,  for  the  purpose  of 
raising  money  to  pay  off  mortgages  and  attachments  there- 
on, he  promising  to  convey  the  land  to  the  plaintiffs,  it  was 
held  that  as  the  alleged  trust  did  not  arise  by  implication  of 
law,  the  agreement  was  wnthin  the  statute  of  frauds,  and 
void,'  Where  a  mortgage  is  given  on  several  parcels  of 
land,  the  mortgagor  cannot  avail  himself  of  a  verbal  agree- 
ment entered  into  at  the  time  of  executing  the  mortgage, 
that  if  the  mortgagor  should  sell  one  of  the  parcels,  the 
mortgagee  w^ould  release  it  from  the  mortgage  upon  the 
payment  of  a  certain  sum.*  But  where  a  mortgagee  entered 
into  a  parol  agreement  to  release  the  mortgagor  from  his 
personal  liability,  if  he  would  convey  the  land  to  a  third 
person,  it  was  held  that  such  agreement  might  be  enforced 
by  the  mortgagor,  after  performance  on  his  part.' 

§  25  7.  General  ride  as  to  part  performance. — It  has  long 
been  settled  in  England,  that  part  performance  of  a  parol 
agreement  may  take  the  case  out  of  the  operation  of  the 
statute  of  frauds  ;  °  and  in  this  country  the  same  doctrine 
has   been  adopted  in  most  of  the  States;' the  statute  in 

^  Farnham  v.  Clements,  51  Me.,  426.      "^  Wheeler  v.  Reynolds,  66  N.  Y.,  227. 

^  Walker  v.  Locke,  5  Cush.,  90.  A.  built  a  house  for  B.,  for  which  B.  gave  a 
bond  to  convey  a  tract  of  land  to  which  he  had  no  title,  except  the  verbal  prom- 
ise of  his  father  to  convey  the  land  to  him.  A.,  having  filed  a  bill  to  enforce  a 
conveyance,  it  was  held,  on  appeal,  that  a  decree  for  specific  performance  against 
the  father,  was  erroneous,  but  that  B.  should  be  compelled  to  procure  a  convey- 
ance or  pay  damages.     Hickman  v.  Grines,  i  A.  K.  Marsh,  86. 

*  Cooper  v.  Stevens,  i  Johns  Ch.,  425.  ^  Coyle  v.  Davis,  20  Wis.,  564. 

*  Lister  v.  Foxcroft,  Gilb.  Eq.  R.,  4;  O'Herlihy  v.  Hedges,  i  Sch.  &  Lef.,  123; 
Bond  V.  Hopkins,  lb.,  433 ;  Warden  v.  Jones,  23  Beav.,  487  ;  Kelley  v.  Webster, 
10  Eng.  L.  &  Eq  ,  517. 

'  Downey  v.  Hotchkiss,  2  Day,  225  ;  Wilde  v.  For,  i  Rand,  165  ;  Johnston  v. 
Johnston,  6  lb.,  370;  Ash  v.  Doggy,  6  Ind.,  259;  Hoen  v.  Simmons,  i  Cal.,  119; 
Arguello  v.  Edingcr,  10  lb.,  150:  Kidder  v.  Barr,  35  N.  H.,  235;  Hawkins  v. 
Hunt,  14  111.,  42  ;  Giimore  v.  Johnson,  14  Ga.,  683  ;  Johnston  v.  Hubbell,  10  N.  J. 


§   257.       GENERAL    RULE    AS    TO    PART    PERFORMANCE.  35 1 

some  of  them  expressly  excepting  part  performance.  In 
Michigan,  Minnesota,  Nebraska,  New  York,  and  Wiscon- 
sin, the  language  of  the  statute  on  the  subject  is  as  follows  : 
"  Nothing  in  this  title  contained,  shall  be  construed  to 
abridge  the  powers  of  courts  of  equity  to  compel  the  spe- 
cific performance  of  agreements  in  cases  of  part  perform- 
ance of  such  agreements."*  In  Alabama,  verbal  contracts 
for  the  sale  of  lands,  or  of  any  interest  therein,  except 
leases  for  a  term  not  longer  than  one  year,  are  declared  to 
be  void,  "  unless  the  purchase  money  or  a  portion  thereof 
be  paid,  and  the  purchaser  be  put  in  possession  of  the  land 
by  the  seller."'  In  California, 'a  parol  agreement  for  the 
sale  of  land,  or  of  any  interest  therein,  other  than  an  estate 
for  a  term  not  exceeding  one  year,  to  be  valid,  must  have 
been  part  performed  by  the  party  seeking  to  enforce  it,  and 
such  part  performance  have  been  accepted  by  the  other.' 
In  Iowa,  the  statute  does  not  apply  "  where  the  purchase 
money  or  any  part  thereof  has  been  received  by  the  ven- 
dor, or  where  the  vendee,  with  the  actual  or  implied  con- 


Eq.,  332  ;  Eyre  v.  Eyre,  19  lb.,  102.  In  South  Carolina,  where  a  parol  contract 
was  clearly  proved  and  part  performance,  the  court  decreed  a  specific  perform- 
ance against  the  infant  heirs  of  one  of  the  parties,  allowing  them  six  months 
after  becoming  of  age,  to  show  cause  against  the  decree.  Wilkinson  v.  Wilkin- 
son, I  Dessaus  Eq  ,  201.  In  North  Carolina,  a  court  of  equity  decreed  specific 
performance  of  a  parol  contract  for  the  sale  of  land  where  there  had  been  no 
part  performance,  but  held  that  the  contract  must  be  proved  as  satisfactorily  as 
it  could  have  been  done  by  a  writing.  Dark  v.  Bagley,  3  Murphy,  33.  See 
Puttman  v.  Haltey,  24  Iowa,  425.  A  court  of  equity  will  decree  specific  per- 
formance of  a  parol  agreement  tor  the  purchase  of  an  equitable  interest  in  land 
for  which  the  vendor  has  a  certificate  of  purchase  from  one  of  the  United  States 
land  offices,  where  there  has  been  a  part  performance.  Kay  v.  Watson,  17 
Ohio,  27.  Although  a  right  of  way  is  an  interest  in  real  estate,  yet  as  the  tak- 
ing of  land  for  a  highway,  is  an  act  done  by  officers  pursuant  to  authority  given 
them  by  statute,  the  claim  of  the  owner  of  the  land  taken,  for  damages,  may  be 
released  by  him  by  parol  before  the  commissioners,  and  by  an  entiy  thereof  on 
their  records.  Fuller  v.  County  Commrs.,  15  Pick.,  8r.  In  Pennsylvania,  the 
statute  does  not  avoid  the  agreement,  but  simply  restrains  its  effect.  Therefore, 
in  that  State,  an  action  may  be  maintained  for  the  breach  of  a  parol  contract  to 
sell  or  buy  land.  When,  however,  such  an  action  is  brought  against  a  vendee, 
the  measure  of  damages  is  not  the  price  he  agreed  to  pay.  Tripp  v.  Bishop,  56 
Pa.  St.,  424. 

'  Comp.  Laws  of  Mich.,  1871,  Vol.  2,  p.  1455,  Ch.  166,  Sec.  8  ;  Sts.  of  Minn., 
1873,  Vol.  I,  p.  692,  Sec.  13;  Sts.  of  Neb.,  1873,  Ch.  25,  Sec.  6;  Rev.  Sts.  of  N. 
Y.,  6th  Ed.,  Vol.  3,  p.  341,  Sec.  10 ;  Sts.  of  Wis.,  1871,  Vol.  2,  Ch.  106,  Sec.  10. 

=  Code,  1867,  p.  41  r.  Sec.  1862.  ^  Code,  Sec.  1741. 


352  STATUTE    OF    FRAUDS.  §   258, 

sent  of  the  vendor  has  taken  and  held  possession  under  and 
by  virtue  of  the  contract."' 

§  258.  Proof  of  part  performance  not  allowed. — In  a 
few  of  the  States,  the  courts  have  refused  to  enforce  parol 
contracts  within  the  statute  of  frauds,  on  the  ground  that 
they  had  been  partly  performed."  In  Tennessee,  it  was 
early  held,  under  the  statute  of  that  State,  which  is  a  copy 
of  the  English  statute,  that  parol  evidence  of  part  perform- 
ance from  which  a  contract  for  the  sale  of  real  estate  might 
be  inferred  was  inadmissible.'  The  court  said:  "Aside 
from  authority,  the  statute  is  simple  and  unambiguous  in  its 
provisions,  is  consistent  with  our  constitution,  and  bars  all 
suits  upon  parol  contracts  for  the  sale  of  lands.  Rules  of 
construction,  deduced  from  legal  learning,  can  add  nothing 
to  explain  the  meaning  of  the  Legislature.  The  English 
judges  of  modern  times  sufficiently  lament  the  decisions  of 
their  predecessors  going  to  relieve  against  cases  of  sup- 
posed or  real  hardship  affected  by  the  statute  of  frauds."* 
In  Maine,  under  the  revision  of  the  statutes,  "it  appears 
to  have  been  the  intention  not  to  authorize,  under  any  cir- 
cumstances, a  decree  for  the  specific  performance  of  a  con- 
tract not  made  in  writing."  °  If  merged  in  a  judgment,  it 
would  no  longer  be  a  contract  in  writing  within  the  pur- 
view of  the  statute.'  In  North  Carolina,  where,  to  a  bill 
for  the  specific  performance  of  a  parol  contract,  the  defend- 
ant denies  the  contract  as  alleged  and  relies  on  the  statute, 
no  parol  evidence  can  be  received  on  the  ground  of  part 
performance ;  and  the  court  cannot  decree  a  specific  per- 
formance, even  though  the  defendant  in  his  answer  admit 

'  Code,  1873,  Sec.  3663.  For  a  summary-  of  the  doctrine  of  part  performance 
of  contracts  concerning  real  estate,  see  Wright  v.  Pucket,  2  Gratt.,  370. 

-  Alien  V.  Chambers,  4  Ired.  Eq.,  125  ;  Luckett  v.  Williamson,  37  Mo.,  388  ; 
Brooks  V.  Wheelock,  n  Pick.,  439;  Jacobs  v.  Peterborough  &  Shirley  R.R.  Co., 
8  Cash.,  223  ;  Hunt  v.  Roberts,  40  Me.,  187. 

=*Patton  V.  M'Clure,  Mart.  &  Yerg.,  333. 

*  Catron,  J.,  and  see  Ridley  v.  McNairy,  2  Humph.,  174. 
^Wilton  V.  Harwood,  23  Me.,  131,  per  Shepley,  J. 

*  Bubier  v.  Bubier,  24  Me.,  42. 


§  258.   PROOF  OF  PART  PERFORMANCE  NOT  ALLOWED.  353 

the  parol  contract/  But  the  court,  under  the  prayer  for 
general  relief,  will  decree  an  account  for  improvements 
made  on  the  land  under  such  a  contract,  and  a  return  of 
the  purchase  money  advanced,  deducting  therefrom  the 
annual  value  during  the  vendee's  possession/  In  Missis- 
sippi it  has  been  held,  that  as  the  statute  provides  that  no 
action  shall  be  brought  to  charge  any  person  upon  any  con- 
tract for  the  sale  of  lands,  unless  there  is  a  note  or  memo- 
randum of  the  same  in  writing,  signed  by  the  party  to  be 
charged  therewith,  the  court  will  create  no  exceptions/ 
Accordingly,  where  the  bill  alleged  acts  of  part  perform- 
ance to  take  the  case  out  of  the  statute  of  frauds,  it  was 
held  that  such  acts  must  be  laid  out  of  view%  it  being  the 
settled  doctrine  of  the  court  that  no  exceptions  of  that 
character  would  be  admitted/  In  Massachusetts,  where, 
when  the  suit  was  brought,  the  court  had  no  power  under 
the  statute  to  enforce  the  specific  performance  of  any  con- 
tracts, except  such  as  were  in  writing,  it  w^as  held  that  the 
refusal  of  the  defendant  to  complete  the  performance  of  a 
parol  contract,  which  had  been  partly  performed,  could 
not  be  treated  as  a  constructive  fraud,  and  performance  be 
enforced  on  that  ground/ 

^  Ellis  V.  Ellis,  I  Dev.  Eq.,  345  ;  Barnes  v.  Teague,  i  Jones  Eq.,  277. 

*  Baker  v.  Carson,  i  Dev.  &  Batt.  Eq.,  281  ;  Albea  v.  Griffin,  2  lb.,  9  ;  Lane  v. 
Neilson,  i  Jones  Eq.,  339. 

*  Beaman  v.  Buck,  9  Sm.  &  Marsh,  207  ;  Hairston  v.  Jauclon,  42  Miss.,  380. 
*Box  V.  Stanford,  13  Sm.  &  Marsh,  93. 

'Buck  V.  Dowley,  16  Gray,  555.  See  Abell  v.  Caldervvood,  4  Gal.,  90;  Pat- 
terson V.  Yeaton,  47  Me.,  308  ;  Skipwith  v.  Dodd,  24  Miss.,  487.  The  departure 
from  a  clear  design  of  the  statute,  by  permitting  part  performance  of  parol 
agreements  to  render  them  capable  ot  specific  enforcement,  has  been  regretted 
by  eminent  judges.  In  Lindsay  v.  Lynch,  2  Sch.  Sc  Lef.,  5  and  7,  Lord  Redes- 
dale  said  :  "  I  am  not  disposed  to  carry  the  cases,  which  have  been  determined 
on  the  statute  of  frauds,  any  further  than  I  am  compelled  by  former  decisions. 
That  statute  was  made  for  the  purpose  of  preventing  perjuries  and  frauds,  and 
nothing  can  be  more  manifest,  to  any  person  who  has  been  in  the  habit  of  prac- 
ticing in  courts  of  equity,  than  that  the  relaxation  of  that  statute  has  been  a 
ground  of  much  perjury  and  much  fraud.  If  the  statute  had  been  rigorously 
observed,  the  result  would  probably  have  been  that  few  instances  of  parol  agree- 
ments would  have  occurred  ;  whereas,  it  is  manifest  that  the  decisions  on  the 
subject  have  opened  a  new  door  to  fraud,  and  that  under  pretence  of  part  execu- 
tion, if  possession  is  had  in  any  way  whatever,  means  are  frequently  found  to 
put  a  court  of  equity  in  such  a  situation,  that,  without  departing  from  its  rules, 

23 


354  STATUTE    OF    FRAUDS.  §   259. 

§  259.  Doctrine  of  part  performance  fiot  recognized  at 
law. — In  general,  when  a  contract  within  the  statute  of 
frauds  has  been  in  part  executed  by  one  party,  there  is  a 
plain  remedy  for  such  party  to  a  certain  extent  in  a  court 
of  law,  in  case  the  other  party  fraudulently  refuses  to  exe- 
cute the  contract  on  his  part.  If  money  has  been  paid,  it 
may  be  recovered ;  if  labor  has  been  performed,  compensa- 
tion for  it  may  be  obtained/  But  at  law,  to  take  a  case 
out  of  the  operation  of  the  statute,  there  must  have  been 
full  performance  by  one  of  the  parties  to  the  contract,  the 
doctrine  of  part  performance  being  confined  to  courts  of 
equity.'     It  was  stated  by  Mr.  Justice   Duller  that,  "as  it 

it  feels  itself  obliged  to  break  through  the  statute.  And  I  remember  it  was 
mentioned  in  one  case  in  argument,  as  a  common  expression  at  the  bar,  that  it 
had  become  a  practice  to  improve  gentlemen  out  of  their  estates.  It  is  therefore 
absolutely  necessar)-  for  courts  of  equity  to  make  a  stand,  and  not  carry  the  de- 
cisions further."  In  Forster  v.  Hale,  3  Ves.,  712,  713,  Lord  Alvanley  said:  "I 
admit  my  opinion  is,  that  the  court  has  gone  rather  too  far  in  permitting  part 
performance  and  other  circumstances  to  take  the  case  out  of  the  statute ;  and 
then,  unavoidably  perhaps,  after  establishing  the  agreement,  to  admit  parol  evi- 
dence of  the  contents  of  that  agreement.  As  to  part  performance,  it  might  be 
evidence  of  some  agreement ;  but  of  what,  must  be  left  to  parol  evidence.  \ 
always  thought  the  court  went  a  great  way.  They  ought  not  to  have  held  it 
evidence  of  an  unknown  agreement,  but  to  have  had  the  money  laid  out  repaid. 
It  ought  to  have  been  a  compensation.  Those  cases  are  very  unsatisfactory.  It 
was  ver^'  right  to  say  the  statute  should  not  be  an  engine  of  fraud ;  therefore 
compensation  would  have  been  very  proper.  They  have,  however,  gone  farther: 
saying  it  was  clear  there  was  some  agreement,  and  letting  them  prove  it.  But 
how  does  the  circumstance  of  a  man  having  laid  out  a  great  deal  of  money  prove 
that  he  is  to  have  a  lease  for  ninety-nine  years?  The  common  sense  of  the 
thing  would  have  been  to  have  let  them  bring  an  action  for  the  money.  I  should 
pause  upon  such  a  case."  In  a  case  in  Pennsylvania,  the  court  said  :  "  If  judges 
who  allowed  themselves  originally  to  be  seduced  from  it  by  the  hardship  of  par- 
ticular cases  had  never  swerved,  the  statute  itself,  and  the  necessity  of  adhering 
to  its  provisions,  would  have  become  so  well  known,  that  many  of  those  distress- 
ing cases  arising  from  parol  contracts  never  would  have  occurred  ;  and  at  all 
times,  as  well  now  as  soon/rafter  enacting  the  law,  there  would  have  been  less 
hardship  and  injustice  if  its  provisions  had  been  strictly  followed."  Coulter,  J., 
in  Fry  v.  Shipler,  7  Pa.  St.,  91. 

'  Kidder  V.  Hunt,  I  Pick.,  328;  Sherburne  v.  Fuller,  5  Mass.,  133;  Boyd  v. 
Stone,  II  lb.,  342;  Mavor  v.  Pyne,  2  Car.  &  P.,  91;  Burlingame  v.  Burlin- 
game,  7  Cowen,  92 ;  Gillet  v.  Maynard,  5  Johns,  85.  Specific  performance  of  a 
parol  agreement  will  not  be  decreed  on  the  ground  of  part  performance  when 
the  remedy  at  law  is  adequate.     Webster  v.  Gray,  37  Mich.,  37. 

''Lane  v.  Shackford,  5  N.  H.,  130;  Patterson  v.  Cunningham,  12  Me.,  506; 
Norton  v.  Preston,  15  lb.,  14;  Allen  v.  Booker,  2  Stew.,  21  ;  Johnson  v.  Han- 
son, 6  Ala.,  351  ;  Payson  v.  West,  Walker,  Miss.,  515  ;  Thompson  v.  Gould,  20 
Pick.,  134;  Adams  v.  Townsend,  l  Mete,  483  ;  Seymour  v.  Davis,  2  Sandf., 
239;  Duncan  v.  Blair,  5  Denio,  196;  Thomas  v.  Dickinson,  14  Barb.,  90;  Eaton 
V.  Whitaker,  18  Conn.,  222  ;  Sailors  v.  Gambriel,  Smith,  Ind.,  82.  See  remarks 
of  Kent,  J.,  in  Squire  v.  Whipple,  i  Vt.,  73. 


§   26o.      WHY  PROOF  OF  PARTIAL  FULFILMENT  ALLOWED.       355 

is  settled  in  equity,  that  part  performance  takes  a  case  out 
of  the  statute,  the  same  rule  holds  at  law.'"  Lord  Eldon, 
however,  showed  that  the  rule  could  not  be  same  at  law 
and  in  equity."  And  Kent,  C.  J.,  in  a  case  before  him, 
said:  "There  is  such  a  dictum  of  Justice  Duller  while  sit- 
ting in  the  court  of  chancery,  but  it  has  never  been  re- 
ceived as  law."'  Moreover,  it  is  reported  that  Justice  Dul- 
ler afterward,  in  the  case  of  a  demurrer  to  evidence,  de- 
clared that  "  the  ground  on  which  a  court  of  equity  goes, 
in  cases  of  part  performance,  is  that  sort  of  fraud  which  is 
cognizable  in  equity  only.'"  In  an  early  case  in  Massa- 
chusetts, it  was  said  that  the  doctrine  of  courts  of  equity  as 
to  the  effect  of  part  performance  of  a  parol  agreement  for 
the  conveyance  of  land  seemed  to  have  been  recognized  by 
courts  of  law.  Dut  the  decision  was  rendered  on  a  differ- 
ent point.' 

§  260.  TV/iy  proof  of  paj^tial  fulfilment  allowed. — The 
doctrine  of  part  performance  is  based  upon  the  principle 
that  it  would  be  inequitable,  and  a  fraud  on  the  part  of  the 
individual  insisting  upon  the  statute,  to  rely  upon  it,  after 
having,  by  his  acts,  induced  his  adversary  to  do  acts  in  part 
performance  of  a  parol  agreement,  and  upon  the  faith  of  its 
full  performance  by  both  parties,  and  for  which  he  could 
not  well  be  compensated  in  any  manner  except  by  a  spe- 
cific performance  of  the  agreement."  And  hence,  the  acts  of 

'  Brodie  v.  St.  Paul,  i  Ves.,  326. 

''Cooth  V.  Jackson,  6  Ves.,  12.     And  see  Rondeau  v.  Wyatt,  2  H.  Blk.,  63. 

'Jackson  v.  Pierce,  2  Johns.,  221. 

■•O'Herlihy  v.  Hedges,  i  Sch.  &  Lef.,  123.  But  see  Walter  v.  Walter,  I 
Whart.,  292, 

'  Davenport  v.  Mason,  15  Mass.,  94. 

^  Buckmaster  v.  Harrop,  7  Ves.,  346;  Mundy  v.  Joliffe,  5  My.  &  Cr.,  177; 
Meach  v.  Stone,  i  D.  Chip.  Vt.,  182  ;  Heth  v.  Wooldridge,  6  Rand  605  ;  Hamil- 
ton V.  Jones,  3  Gill  &  Johns,  127  ;  Merethen  v.  Andrews,  44  Barb.,  200  ;  Neatherly 
V.  Ripley,  21  Texas,  434;  Mason  v.  Blair,  33  III.,  194;  Nye  v.  Taggart,  40 
Vt.,  295  ;  Glass  v.  Hulbert,  102  Mass.,  35  ;  Brewer  v.  Brewer,  19  Ala.,  481  ;  Far- 
rar  v.  Patton,  20  Mo.,  81  ;  Dickerson  v.  Chrisman,  28  lb.,  134;  Hane  v.  Good- 
rich, 33  N.  H.,  32  ;  Weber  v.  Marshall,  19  Gal.,  447  ;  Moore  v.  Small,  19  Pa.  St., 
461  ;  Ponce  v.  McWhorter,  50  Texas,  562  ;  Williams  v,  Morris,  5  Otto,  457  ; 
Evans  v.  Lee,  12  Nevada,  393;  i  Sug.  V.  &  P.,  8th  Am.  Ed.,  151.  Upon  this 
principle,  where  a  party  whose  lands  are  about  to  be  sold  by  judicial  sale,  agrees 


356  STATUTE  OF  FRAUDS.  §  26 1. 

part  performance  which  will  estop  one  from  insisting  upon 
the  statute,  must  be  done  by  the  person  who  relies  on  the 
contract ;  for  if  the  latter  chooses  to  waive  the  benefit  of  his 
acts  of  part  performance,  his  adversary  has  no  claim  to  re- 
lief founded  upon  them.'  The  principle  upon  which  spe- 
cific performance  is  decreed  of  a  parol  agreement  followed  by 
acts  of  part  performance,  extends  to  such  contracts  as,  being 
entered  into  by  corporations,  except  for  such  part  perform- 
ance, would  be  void  for  want  of  the  corporate  seal." 

§  261,   What  p7'oof  of  partial  fulfilment  required. — As 
to  what  shall  constitute  part  performance  sufficient  to  take 
the  agreement  out  of  the  statute,  there  has  been  some  dif- 
ference of  opinion.     The  general  principle  is,  that  the  act  "^ 
of  part  performance  must  have  reference   to  the  contract,  i 
be  in  execution  of  it,  and  be  an  act  which  would  be  ££e|u-   : 
dicial  to  the  party  seeking  performance,  if  the  agreement  | 
were  not  enforced.'     The   act  performed   should  tend  to^ 


with  another  to  loan  him  money,  and  bid  off  and  hold  the  land  as  a  security  for 
the  money,  and  the  agreement  is  consummated,  the  vendor  holds  the  title  so 
acquired  as  a  mortgagee  in  equity.  Ryan  v.  Dox,  34  N.  Y.,  307.  The  doctrine 
of  part  performance  is  concisely  and  comprehensively  stated  in  Haddock's 
Chancery  Practice,  Vol.  I.,  p.  301,  thus:  "  If,  therefore,  it  be  clearly  shown  what 
the  agreement  was,  and  that  it  has  been  partly  performed,  that  is,  that  an  act 
has  been  done,  not  a  mere  voluntary  act,  or  merely  introductory  or  ancillary  to 
the  agreement,  but  a  part  execution  of  the  substance  of  the  agreement,  and  which 
would  not  have  been  done  unless  on  account  of  the  agreement — an  act,  in  short, 
unequivocally  referring  to,  and  resulting  from,  the  agreement,  and  such  that  the 
party  would  suffer  an  injury  amounting  to  fraud  by  the  refusal  to  execute  that 
agreement,  in  such  case,  the  agreement  will  be  decreed  to  be  specifically  per- 
formed." 

'  Rathbun  v.  Rathbun,  6  Barb.,  98.  Where  a  person  in  possession  of  real 
estate  under  a  parol  agreement  of  purchase,  afterward  bought  a  defective  out- 
standing title,  and,  in  an  action  of  ejectment  against  him  by  his  vendor,  did  not 
defend  under  his  agreement,  but  set  up  the  defective  title,  and,  on  a  recovery 
against  him,  took  a  lease  of  the  property,  it  was  held  that  he  had  waived  his 
rights  under  the  agreement.     Zimmerman  v.  Wengert,  31  Pa.  St.,  401. 

"^  London  &  Birmingham  R.R.  Co.  v.  Winter,  Cr.  &  Ph.,  57  ;  Earl  of  Lindsay 
V.  Great  Northern  R.R.  Co.,  10  Hare,  664,  700. 

3  Anderson  v.  Chick,  i  Bailey  Eq.,  118;  Smith  v.  Smith,  i  Rich.  Eq.,  130; 
Hatcher  v.  Hatcher,  i  McMullan  Eq.,  311  ;  Wolfe  v.  Frost,  4  Sandf.  Ch.,  72; 
Eckert  v.  Eckert,  3  Primrose  &  Watts,  332  ;  Dale  v.  Hamilton,  5  Hare,  381  ; 
Buckmaster  v.  Harrop,  13  Ves.,  456;  Lacon  v.  Mertins,  3  Atk.,  i  ;  Powell  v. 
Lovegrove,  8  De  G.  M.  &  G.,  357  ;  Eaton  v.  Whitaker,  18  Conn.,  222  ;  Kidder 
V.  Barr,  35  N.  H.,  235  ;  Moale  v.  Buchanan,  11  Gill  &  Johns,  314;  Morphett  v. 
Jones,  I  Swanst.,  172;  Peckham  v.  Barker,  8  R.  L,  17;  Richmond  v.  Foote,  3 
Lansing,  244;  Hedrick  v.  Hern,  4  W.  Va.,  620;  Welsh  v.  Bayard,  21  N.  J.  Eq., 


§   26l.    WHAT  PROOF  OF  PARTIAL  FULFILMENT  REQUIRED.     357 

show,  not  only  that  there  has  been  an  agreement,  but  also 
to  throw  light  on  the  nature  of  that  agreement,  so  that 
neither  the  fact  of  an  agreement,  nor  even  the  nature  of 
that  agreement,  rests  solely  upon  parol  evidence,  the  parol 
evidence  being  auxiliary  to  the  proof  afforded  by  the  cir- 
cumstances of  the  case  itself.'  The  part  performance  must 
be  somethinof  done  with  the  actual  or  constructive  assent  of 
the  defendant.  The  mere  remaining  silent,  while  seeing 
the  purchaser  take  possession  of  the  land  agreed  to  be 
sold,  and  make  improvements  on  it  for  the  purpose  for 
which  it  was  purchased,  without  remonstrance,  might  be 
deemed  an  assent ;  but  not,  the  taking  of  forcible  possession 
of  the  land  by  the  purchaser,'  nor  taking  possession  without 
the  knowledge   or  permission   of  the  vendor."     The   part 

186;  Lester  v.  Kinne,  37  Conn.,  9;  Billingslea  v.  Ward,  33  Md.,  48  ;  Wright  v. 
"  Pucket,  22  Gratt.,  370;  Davenport  v.  Mason,  15  Mass.,  84.  A  party  seeking  to 
enforce  tl:e  specific  performance  of  a  parol  contract  for  the  exchange  of  lands, 
must  bring  himself  within  the  same  conditions  as  though  it  was  a  contract  for 
their  sale,  before  he  can  invoke  the  aid  of  a  court  of  equity.  Purcell  v.  Miner,  4 
Wall,  513  ;  post,  §  279.  When  both  parties  jointly  interested  in  land  enter  into 
a  parol  agreement  for  its  division,  equity  will  decree  specific  performance  where 
there  has  been  part  performance  ;  but  both  parties  to  the  agreement  must  be 
before  the  court.  Petray  v.  Howell,  20  Ark.,  615  ;  post,  §  277.  So,  if  there  be 
a  doubt  as  to  which  of  two  parties  claiming  the  same  land  under  conflicting 
titles,  has  the  legal  title,  and  they  enter  into  a  verbal  agreement  to  compromise 
and  divide  the  land,  specific  performance  will  be  decreed  where  the  party  seek- 
ing it  has  acted  fairly  and  has  partly  performed.  Weed  v.  Terry,  Walker,  Mich., 
501  ;  S.  C,  2  Douglas,  322. 

1  Stoddert  v.  Tuck,  4  Md.  Ch  ,  475  ;  Semmes  v.  Worthington,  38  Md  ,  298. 
In  1859  A.,  having  bequeathed  certain  leaseholds  to  his  sister  B.,  was  served, 
in  1869,  with  a  notice  by  a  railroad  company  to  treat  for  the  leaseholds  for  the 
purposes  of  their  road.  Surveyors  verbally  appointed  by  A.  and  the  company, 
settled  the  value  of  the  leaseholds,  and  A.,  in  the  same  manner,  agreed  to  the 
sum  named.  A.  died  in  February,  1869,  and  nothing  further  was  done  in  the 
matter  until  April,  1870,  when  the  sale  was  completed  by  A.'s  e.xecutor.  It  was 
held  that  the  notice  to  treat,  followed  by  the  valuation  by  the  surveyors,  not- 
withstanding the  statute  of  frauds,  was  a  valid  contract.  Watts  v.  Watts,  L.  R. 
17,  Eq.  217. 

2  Camden  &  Amboy  R.R.  Co.  v.  Stewart,  18  N.  J.  Eq.,  489. 

^  Givens  v.  Calder,  2  Dessaus  Eq.,  171.  When  part  performance,  either  from 
the  nature  of  the  acts  themselves,  or  from  the  character  of  the  person  permitting 
them,  does  not  amount  to  fraud  in  the  party  refusing  to  perform,  the  jurisdiction 
in  question  does  not  exist.  Where,  for  instance,  a  person  seeks  the  aid  ot  the 
court  to  enforce  against  a  remainder-man,  a  parol  agreement  entered  into  between 
the  plaintiff  and  tenant  for  life,  acts  of  part  performance  which  would  have  been 
binding  on  the  tenant  for  life,  will  not  bind  the  remainder-man,  unless  it  can  be 
shown  that  he  permitted  the  acts  of  the  plaintiff  with  a  knowledge  of  the  agree- 
ment. Blore  v.  Sutton,  3  Men,  237  ;  Whitbread  v.  Brockhurst,  i  Bro.  C.  C, 
404 ;  Shannon  v.  Bradstreet,  l  Sch,  &  Lef.,  72  ;  Morgan  v.  Dvlilman,  3  De  G.  M. 


35^  STATUTE    OF    FRAUDS.  §   262. 

performance  must  be  such  as  to  make  the  agreement  re- 
ciprocal, and  the  right  to  enforce  it  mutual.' 

§  262.  What  not  deemed  a  partial fu/Jilmeut. — The  fol- 
lowing acts  do  not  constitute  part  performance  :  The  draw- 
ing of  the  deeds  by  the  vendor,  taking  them  home,  and 
writing  to  the  vendee  that  they  are  ready,  and  requesting 
him  to  call  and  settle  the  business  ;  the  vendee  depositing 
part  of  the  purchase  money  with  his  agent  to  pay  the  ven- 
dor as  soon  as  the  deed  is  executed,  and  the  agent  so  in- 
forming the  vendor  ;  taking  possession  of  the  land  without 
the  sanction  of  the  vendor."  A.  entered  into  a  verbal  agree- 
ment with  B.  for  the  purchase  of  real  estate,  and  made  a 
small  payment,  promising  to  pay  the  balance  in  two  weeks 
when  the  deed,  which  was  deposited  with  C,  as  an  escrow,  w^as 
delivered.  At  the  expiration  of  the  time  named,  A.  refused 
to  complete,  but  purchased  of  D,,  who  held  adversely  to  B., 
and  took  possession.  Held,  that  there  was  no  such  part 
performance  as  took  the  case  out  of  the  statute.'  The  exe- 
cution and  deposit  of  the  deed,  "  showed  a  willingness  to 
perform  the  contract  on  the  part  of  the  plaintiff,  though  he 
was  not  bound  to  do  so,  and  if  that  performance  had  been 
accepted  and  taken  advantage  of  by  the  defendant,  the 
statute  would  not  have  shielded  him.     But  the  deposit  of 


&  G.,  33.  "  For  to  constitute  fraud,  there  must  coincide,  in  one  and  the  same 
person,  knowledge  of  some  fact,  and  conduct  inequitable  having  regard  to  such 
knowledge."  Fn,'  on  Specif.  Perform.,  p.  177.  Of  course  the  acts  of  persons 
who  are  not  parties  to  the  contract  will  not  be  sufficient.  Thus,  acts  done  by 
arbitrators  in  the  discharge  of  their  duty  do  not  constitute  part  performance  of  a 
parol  agreement  for'a  compromise  and  division  of  estates  by  arbitrators.  Cooth 
V.  Jackson,  6  Ves.,  12. 

'  Smith  V.  McVeigh,  11  N.J.  Eq.,  239.  A.  sold  land  to  B.,  and  B.  to  C,  A. 
promising,  by  parol  and  without  consideration,  to  convey  to  C,  on  receiving  the 
balance  due  from  C.  to  B.  On  a  bill  by  C.  against  A.,  B.  being  insolvent,  it  was 
held  that  C.  was  not  entitled  to  a  decree  until  all  the  purchase  money  due  from 
B.  to  A.  was  paid.  Tubman  v.  Anderson,  4  Har.  &  j\I.,  357.  Equity  "  does  not 
in  all  cases  require  a  complainant  seeking  to  coerce  performance,  to  show  a  per- 
formance on  his  part,  or  even  an  ability  to  perform  literally  ;  but  he  must  show 
that  he  has  not  been  in  default,  and  that  he  has  taken  all  proper  steps  toward 
performance  ;  and  if  the  compliance  does  not  go  to  the  essence  of  the  contract, 
relief  will  be  granted."     McCorkle  v.  Brown,  r  Sm.  &  Marsh,  167  :  post,  §  430. 

*  Givens  v.  Calder,  supra  ;  Reeves  v.  Pye,  i  Cranch,  219;  post,  §272. 

'  Townsend  v.  Hawkins,  45  Mo.,  286. 


§   262.       WHAT    NOT    DEEMED    A    PARTIAL    FULFILMENT.         2>59 

the  deed  as  an  escrow,  until  he  had  performed  the  con- 
ditions stipulated,  was  not  a  delivery."'  Where  a  surveyor 
and  another,  enter  into  a  parol  contract  by  which  the  sur- 
veyor is  to  search  for,  and  survey,  swamp  lands,  the  other 
to  pay  the  first  instalment  of  twenty  per  cent,  purchase 
money,  procure  a  certificate  of  purchase,  and  then  deed  one- 
half  to  the  surveyor,  such  services  performed  by  the  sur- 
veyor do  not  constitute  a  part  performance  which  will  take 
the  case  out  of  the  statute.  The  refusal  of  the  other  to  con- 
vey, merely  leaves  him  the  creditor  of  the  surveyor.'  Where, 
in  the  case  of  a  parol  gift  of  land,  it  appeared  that  the  bene- 
fit to  the  donee  by  the  possession  of  the  land  exceeded  his 
expenditure  upon  it,  it  was  held  that  the  case  was  not  taken 
out  of  the  statute.'  But  where  it  appeared  that  the  plaintiff 
entered  into  a  parol  agreement  with  the  defendants,  that  they 
should  purchase  certain  land  adjoining  the  plaintiff's  prem- 
ises, and  convey  one-half  thereof  to  the  plaintiff ;  that  the 
plaintiff,  in  pursuance,  and  upon  the  faith,  of  the  agreement, 
contributed  his  professional  services,  worth  seventy-five  dol- 
lars, toward  the  acquisition  of  the  title,  which  the  defend- 
ants got ;  and  that  they  were  insolvent,  and  claiming  to  hold 
this  land,  which  by  the  statute  was  exempt  from  sale  under 
execution  ;  it  was  held  that  the  plaintiff  was  entitled  to  spe- 
cific performance  of  the  agreement.*  So,  w^here  it  was  ver- 
bally agreed  between  a  husband  and  wife,  that  if  she  would 
unite  with  him  in  a  deed  of  a  portion  of  her  real  estate,  he 
would  buy  certain  land,  erect  buildings  on  it,  and  convey  it 
to  her,  and  the  agreement  was  partly  carried  out  by  her  join- 
ing in  the  deed,  and  his  making  the  purchase  and  putting 
up  the  buildings,  and  it  appeared  that  the  husband  had  no 

'  lb.,  per  Bliss,  J. 

2  Edwards  v.  Estell,  48  Cal.,  194.  Where  A.  entered  into  a  contract  with  B., 
that  in  consideration  the  latter  would  discharge  A.  from  his  agreement  to  sell 
shares  in  a  corporation  to  B.,  for  a  sum  named,  A.  would  pay  B.  one-half  of  what- 
ever he,  A.,  realized  over  and  above  said  sum,  by  the  sale  of  such  shares  to  a 
third  person,  and  the  shares  were  sold  by  A.  at  a  large  advance,  it  was  held  that 
there  was  no  such  part  performance  as  took  the  case  out  of  the  statute  of  frauds. 
North  v.  Forest,  15  Conn.,  400. 

2  Wack  V.  Sorber,  2  Whart.,  387.  *  Christian  v.  Smith,  30  Ga.,  96. 


360  STATUTE    OF    FRAUDS.  §   263. 

Other  property  apart  from  his  wife,  it  was  held  that  she  was 
entitled  to  specific  performance  of  the  agreement  against 
his  heirs.' 

§  263.  What  is  done  must  be  solely  in  pursuance  of  the 
contract. — Acts  to  be  deemed  a  part  performance  of  a  parol 
agreement  so  as  to  estop  a  party  from  insisting  upon  the 
statute  of  frauds,  should  be  so  clear,  certain,  and  definite, 
in  their  object  and  design,  as  to  refer  exclusively  to  a  com- 
plete and  perfect  agreement  of  which  they  are  a  part  execu- 
tion ;''  and  they  must  be  such  as  could  have  been  done  with 
no  other  view  or  design,  than  to  perform  the  agreement.' 
Accordingly,  where  a  tenant  in  possession  filed  a  bill  for 
the  specific  performance  of  an  agreement  for  a  lease,  and 
alleged  his  possession  as  an  act  of  part  performance  of  the 
agreement,  it  was  held  not  to  be  such,  because  it  might  be 
referred  to  his  character  as  a  tenant.^  So,  where  a  tenant 
from  year  to  year  remains  in  possession,  and  makes  such 
expenditures  on  the  farm  as  are  customary  in  the  ordinary 
course  of  husbandry,  it  does  not  constitute  part  perform- 
ance of  an  agreement  for  a  lease.'     And  the  same  is  true 

'  Gosden  v.  Tucker,  6  Munf.,  i.  Where  a  husband  and  wife  agreed  by  parol 
that  he  should  buy  land  in  the  wife's  name  and  build  a  house  on  it,  and  that 
another  house  and  lot  owned  by  the  wife,  should  be  sold,  and  the  husband,  from 
the  proceeds  thereof,  be  repaid  for  his  outlay,  and  the  husband  having  fulfilled 
on  his  part,  the  wife  suddenly  died,  it  was  held  that  he  was  entitled  to  have  the 
agreement  carried  into  effect.     Livingston  v.  Livingston,  2  Johns  Ch.,  537. 

'■*  Thynne  V.  Lord  Glengail,  6  House  of  Lds.,  158  ;  Rathbun  v.  Rathbun,  6  Barb., 
98;  Brewer  v.  Wilson,  17  N.  J.  Eq.,  180;  Whitridge  v.  Parkhurst,  20  iMd.,  62  ; 
Mundorff  V.  Howard,  4  Md.,  459  ;  Aday  v.  Echols,  18  Ala.,  353  ;  Smith  v.  Cran- 
dall,  20  Md.,  482  ;  Bunton  v.  Smith,  40  N.  H.,  352;  Wallace  v.  Brown,  10  N.  J. 
Eq.,  308  ;  Cole  v.  Potts,  lb.,  67  ;  Charpiot  v.  Sigerson,  25  Mo.,  63  ;  Williamson 
V.  Williamson,  4  Iowa,  279 ;  Eyre  v.  Eyre,  19  N.  J.  Eq.,  102  ;  Goodhue  v.  Barn- 
well, Rice  Eq  ,  198  ;  Petrick  v.  Petrick,  19  N.  J.  Eq.,  339  ;  Owings  v.  Baldwin,  8 
Gill,  337.  To  take  a  parol  contract  for  the  sale  of  land  out  of  the  operation  of 
the  statute  of  frauds,  the  evidence  should  show  the  quantity  of  the  land,  define 
its  boundaries,  fix  the  amount  of  the  consideration,  prove  that  possession  was 
taken  in  pursuance  of  the  agreement  at  or  immediately  after  the  time  it  was  made, 
that  the  change  of  possession  was  notorious,  exclusive,  and  continuous,  and  such 
a  performance  by  the  vendee  as  cannot  be  compensated  in  damages.  Hart  v. 
Carroll,  85  Pa.  St.,  508.     ?>&&posi.  §  276. 

'  Gunter  v.  Halsey,  Ambl.,  586  ;  Carlisle  v.  Fleming,  i  Harring.,  Del.,  421  ; 
Wheeler  v.  Reynolds,  66  N.  Y.,  227. 

*  Wills  V.  Stradling,  3  Ves.,  378  ;  Hooper,  ex  parte,  19  lb.,  479;  Morphett  v. 
Jones,  I  Swanst.,  181  ;  post,  §  274. 

'  Brennan  v.  Bolton,  2  Dr.  &  W,,  349. 


§   263.         WHAT    DONE    IN    PURSUANCE    OF    CONTRACT.  36 1 

where  a  tenant  sets  up  the  rebuilding  of  a  party  wall,  which 
was  in  a  ruinous  condition,  as  part  performance  of  an  agree- 
ment by  his  landlord  for  a  renewal  of  the  lease  ;  as  the  act 
might  have  been  done  by  the  tenant  in  respect  to  his  title 
under  the  old,  as  well  as  under  the  alleged  new  term/  But 
in  order  to  open  the  door  for  the  introduction  of  evidence 
of  the  parol  contract  relied  on,  it  is  sufficient  to  show  that 
acts  of  part  performance  were  done  in  pursuance  of  some 
agreement,  and  that  they  are  consistent  with  the  agreement 
alleged.'  The  principle  of  acts  of  part  performance  was 
illustrated  in  a  case  under  the  1 7th  section  of  the  statute 
of  frauds,  which  came  before  the  English  court  of  com- 
mon pleas.  It  was  there  held,  that  bare  acceptance  of 
goods  by  the  buyer  was  sufhcient  to  satisfy  the  statute,  and 
that  although  he  stated,  immediately  after  accepting  them, 
that  he  did  so  on  terms  different  from  those  on  which  the 
seller  delivered  them,  yet,  as  the  acceptance  proved  a  con- 
tract of  sale,  parol  evidence  of  its  terms  was  admissible. 
It  was  urged  that  the  acceptance  must  be  equivalent  to  a 
memorandum  in  writing,  and  must  show  all  the  terms  of 
the  contract.  But  the  court  decided  that  this  was  unneces- 
sary. Williams,  J.,  said:  ''The  Legislature  has  thought, 
that  where  there  is  a  fact  so  consistent  with  the  existence 
of  a  contract  of  sale  as  the  actual  acceptance  of  part  of 
the  goods  sold,  the  necessity  of  written  evidence  of  the 
contract  might  safely  be  dispensed  with.  But  it  is  clear 
that  it  was  not  meant  to  go  to  all  the  terms  of  the  con- 
tract, and  that  acceptance  is  no  evidence  of  the  price,  but 
only  establishes  the  broad  fact  of  the  relation  of  vendor 
and  vendee.    So,  where  there  is  proof  of  part  performance, 


'  Frame  v.  Dawson,  14  Ves.,  386. 

"^  Forster  v.  Hall,  3  Ves.,  712  ;  Dale  v.  Hamilton,  5  Hare,  381.  Where  the  bill 
alleged  a  parol  agreement  for  a  lease  for  three  lives,  and  payment  of  rent  in  part 
performance,  and  the  defendant  admitted  an  agreement  for  one  life,  but  not  for 
three,  the  court  refused  to  enforce  an  agreement  for  a  lease  for  three  lives,  the 
part  performance  being  consistent  with  the  agreement  admitted  by  the  defend- 
ant.    Lindsay  v.  Lynch,  2  Sch.  &  Lef.,  i,  8. 


362  STATUTE    OF    FRAUDS.  §§   264,   265. 

the  jury  must  settle  all  the  other  facts  that  go  to  make  up 
the  contract."' 

§  264.  Partial  fiiljilnient  imi.st  relate  to  what  might 
itself  be  enforced.— "Wvo.  agreement  to  which  the  acts  of  part 
performance  refer,  must  be  of  such  a  nature  that  the  court 
would  have  had  power  to  enforce  it  if  it  had  been  in  writ- 
ing. Although  where  equity  has  jurisdiction  of  the  sub- 
ject matter,  the  want  of  a  writing  will  not  deprive  the 
court  of  power  to  enforce  the  contract  if  there  have  been 
part  performance,  yet  the  want  of  a  writing  cannot  itself 
be  made  the  ground  of  jurisdiction.  If  it  were  so,  all  parol 
agreements  might  be  enforced  in  equity  w^hen  there  had 
been  part  performance,  which  is  not  the  case.'  Two  per- 
sons having,  on  the  same  day,  and  in  the  presence  of  the 
same  witnesses,  executed  mutual  wills,  and  one  of  them 
having  died,  it  w^as  urged  that  there  was  part  performance, 
under  the  circumstances,  solely  referable  to  an  agreement 
between  the  testators  to  make  such  wills.  But  it  was  held 
a  mere  honorary  engagement,  which  the  court  could  not 
carry  out.' 

§  265.  Evidence  of  agreement. — The  parol  agreement 
must  be  clearly  proved,  in  order  to  take  it  out  of  the 
statute  by  part  performance."  The  contract  must  also  be 
certain,  clear,  and  definite,  the  contract  and  remedy  be 
mutual,  and  the  complainant  not  have  been  guilty  of  laches.' 


'  Tomkinson  v.  Staight,  17  C.  B.,  697.  ^  Kirk  v.  Bromley,  2  Phil,  640. 

^  Lord  Walpole  v.  Lord  Orford,  3  Ves.,  402.  Every  loose  conversation  can- 
not be  turned  into  a  contract,  although  the  parties  may  seem  to  agree.  The 
question  of  assent  is  important,  and  should  be  carefully  weighed,  with  all  the 
circumstances.  The  following  instruction  was  held  proper:  "If  the  jury  be- 
lieve that  all  the  terms  of  the  contract  were  not  finally  arranged  the  first  day, 
but  that  the  entire  contract  was  to  be  arranged  and  reduced  to  writing  the  next 
day,  there  was  no  binding  contract  between  the  parties,  unless  a  contract  was 
proved  to  have  been  made  on  the  next  day,  or  on  some  subsequent  day."  Brown 
V.  Finney,  53  Pa.  St.,  373. 

■•  Reynolds  v.  Waring,  Younge,  346. 

^  Mdler  v.  Gotten,  5  Ga.,  341  ;  Printup  v.  Mitchell,  17  lb.,  558  ;  Colson  v. 
Thomson,  3  Wheat.,  336;  Minturn  v.  Baylis,  33  Gal.,  129;  Gharnley  v.  Hans- 
bury,  13  Pa.  St.,  16  ;  Brewer  v.  Wilson,  17  N.  J.  Eq.,  180  ;  Gooper  v.  Garlisle, 
lb.,  525  ;  Petrick  v.  Ashcroft,  19  N.  J.  Eq.,  339;  Force  v.  Dutcher,  18  lb.,  401  ; 
Long  V.  Duncan,   10  Kansas,  294;  Phillips  v.  Thompson,  i  Johns  Gh.,  149; 


§   266.  PARTIAL    FULFILMENT.  2>^T, 

Equity  will  not  enforce  specific  performance  of  a  parol 
agreement,  if  the  evidence  of  such  agreement  be  contra- 
dictory.' Where  but  one  witness  testified  to  part  perform- 
ance of  a  verbal  contract  to  convey  land,  and  his  testimony 
on  this  point  was  in  direct  conflict  with  the  answer,  the 
court  refused  a  decree  for  specific  performance.'  The  agree- 
ment set  up,  must  appear  to  be  the  same  with  the  one 
partly  performed.'  But,  "if  the  contract  proved,  corre- 
spond with  that  described  in  the  pleadings,  it  will  be  estab- 
lished and  enforced  even  if  there  is  some  variance  between 
the  terms  described  and  those  proved,  provided  this  vari- 
ance does  not  relate  to  matters  of  substance.  If  there  be 
evidence  of  a  contract,  but  it  do  not  distinctly  appear  what 
are  the  terms  thereof,  and  there  seems  also  to  have  been  an 
act  applicable  only  on  the  supposition  of  an  agreement,  a 
court  of  chancery  will  exert  itself  to  ascertain  the  precise 
terms,  and,  if  necessary  for  that  purpose,  will  direct  a  trial 
at  law,  and  then,  if  the  agreement  can  be  defined,  and  the 
acts  of  part  performance  be  consistent  therewith,  it  will  de- 
cree a  specific  execution  thereof,'" 

§  266.  Partial  fuljilinent  with  refei^ence  to  a  part  of  the 
transaction. — Although,  where  an  entire  contract  is  par- 
tially within  the  statute  of  frauds,  the  whole  is  avoided  by  it, 
yet,  by  part  performance  of  the  contract,  the  whole  is  made 


Parkhurst  v.  Van  Cortlandt,  lb.,  284  ;  Blanchard  v.  McDoug-al,  6  Wis.,  167  , 
Knoll  V.  Harvey,  19  lb.,  99;  Allen  v.  Webb,  64  111.,  342  ;  Wright  v.  Wright,  31 
Mich.,  380  ;  Hall  v.  Hall,  i  Gill,  383  ;  Pierce  v.  Catron,  23  Gratt.,  588  ;  Shrop- 
shire V.  Brown,  45  Ga.,  175  ;  Gosse  v.  Jones,  73  III,  508  ;  Stoddert  v.  Tuck,  5 
Md.,  37  ;  Smith  v.  Crandall,  20  lb.,  500 ;  Worthington  v.  Semmes,  38  lb.,  298 ; 
Reese  v.  Reese,  41  lb.,  554. 

1  Rowton  V.  Rowton,  i  Hen.  &  Munf.,  92. 

"  Broughton  v.  Coffer,  18  Gratt.,  184.  The  evidence  of  a  sale  or  gift  of  real 
estate  in  consideration  of  sen'ices  rendered,  must  be  direct,  positive,  clear,  and 
satisfactory.  Bush  v.  Bush,  9  Pa.  St.,  260;  Sanders  v.  Wagonseller,  19  lb., 
248;  Lantz  V.  Fry,  lb.,  366  ;  Candor's  Appeal,  5  Watts  &  Serg.,  515  ;  McCue 
V.  Johnston,  25  Pa.  St.,  306. 

=*  Byrne  v.  Romaine,  2  Edw.  Ch.,  445  ;  Chesapeake  &  Ohio  Canal  Co.  v. 
Young,  3  Md.,  480;  Phillips  v.  Thompson,  supra  ;  Osborn  v.  Phelps,  19  Conn., 
63  ;  Shepherd  v.  Shepherd,  i  Md.  Ch.,  244  ;  Beard  v.  Linthicum,  lb.,  345  ; 
Haight  V.  Childs,  34  Barb.,  186;  4th  Kent's  Com.,  12th  Ed.,  451. 

*  Marcy,  J.,  in  Harris  v.  Knickerbacker,  5  Wend.,  638. 


364  STATUTE  OF  FRAUDS.        §§  267,  268. 

available.'  If  a  part  of  the  contract  be  fraudulently  omitted 
from  the  writing,  the  court  may  disregard  the  writing,  and 
treat  the  whole  transaction  as  a  verbal  contract ;  and  upon 
the  basis  of  the  part  performance,  where  possession  has  been 
taken,  or  the  acts  done  amount  to  part  performance,  it  may 
receive  parol  proof  of  the  whole  agreement,  independently 
of,  or  in  connection  with,  what  may  be  in  writing,  in  order 
to  make  out  the  contract."  A  parol  purchase  of  several  lots 
of  land  sold  together  to  the  same  purchaser,  but  by  distinct 
particulars,  may  be  made  available  by  part  performance  as 
to  one  of  them,  without  being  so  as  to  the  others.'  Where 
the  owner  of  two  parcels  of  land,  verbally  agrees  to  sell  them 
for  a  gross  sum,  gives  a  deed  of  one  of  them,  and  promises 
to  convey  the  other  soon,  and  the  vendee  pays  the  whole 
purchase  money  and  takes  possession  of  both  parcels,  the 
agreement  is  not  merged  in  the  deed,  nor  varied  by  the  pur- 
chaser's consent  to  wait  for  the  conveyance  of  the  other 
parcel.  Neither  does  the  transaction  constitute  a  new  parol 
agreement.  But  the  giving  of  a  deed  of  one  parcel,  is  a 
part  performance  by  the  vendor  of  the  original  agreement.* 

§  267.  Promise  in  behalf  of  stranger. — A  third  person 
may  maintain  a  suit  on  a  parol  promise  made  for  his  bene- 
fit, although  he  is  not  a  party  to  the  contract.  A.,  having 
agreed  to  sell  land  to  B.  for  greatly  less  than  it  was  worth, 
on  condition  that  B.  v/ould  lease  the  land  to  C.  for  life, 
directed  his  agent,  with  whom  the  deed  was  left,  by  a 
memorandum  in  writing,  to  deliver  the  deed  to  B.  on  pay- 
ment of  the  purchase  money,  which  was  done.  B.  refusing 
to  give  a  lease  to  C,  it  was  held  that  the  latter  could  main- 
tain a  bill  in  equity  against  B.  therefor,  and  that  there  was 
such  a  part  performance  of  the  agreement  as  took  it  out  of 
the  statute  of  frauds.' 

§  268.  Mere  paymeiit  of  money  7iot  part  performance. — 
Eminent  judges,  by  losing  sight  of  the  leading  principle 

»  Dock  V.  Hart,  7  Watts  &  Serg.,  172.  "^  Phyfe  v.  Wardell,  2  Edw.  Ch.,  47. 
'  Buckmaster  v.  Harrop,  7  Ves.,  344.  *  Smith  v.  Underdunck,  i  Sandf.  Ch.,  579. 
'  Crocker  v.  Higgins,  7  Conn.,  342. 


§   268.       PAYMENT  OF  MONEY  NOT  PART  PERFORMANCE.  365 

which  lies  at  the  foundation  of  the  doctrine  of  part  perform- 
ance, have  at  times  seemed  to  have  a  confused  idea  with 
reference  to  what  definite  acts  ought  to  be  deemed  such  a 
part  performance  of  a  parol  agreement  for  the  sale  and  pur- 
chase of  real  estate,  as  to  take  the  contract  out  of  the  statute. 
Thus,  it  was  formerly  held  that  the  payment  of  a  portion  of 
the  purchase  money  was  sufficient  to  entitle  the  vendee  to 
specific  performance.'  This,  as  a  general  proposition,  was 
subsequently  denied ;  and  it  was  then  maintained  that 
although  payment  of  a  small  instalment  would  not  be  an 
act  of  part  performance,  yet  that  the  payment  of  a  substan- 
tial part  of  the  price  would  have  that  effect.'     But  it  is 

'  Lacon  v.  Mertins,  3  Atk.,  4.     The  opinion  expressed  by  Lord  Hardwicke  in 

the  foregoing  case,  that  the  payment  of  a  portion  of  the  consideration  was  to  be 
deemed  part  performance,  was  extra  judicial,  facts  having  been  proved  in  the 
case  which  have  always  been  deemed  part  performance,  namely,  possession  de- 
livered, and  improvements  made.  And  the  same  is  true  of  a  similar  opinion 
expressed  by  Thompson,  J.,  in  Wetmore  v.  White,  2  Caines'  Cas.  in  Error,  109. 
^  Main  v.  Melbourn,  4  Ves.,  720,  per  Lord  Rosslyn.  See  Wills  v.  Stradling,  3 
Ves.,  378  ;  Simmons  v.  Cornelius,  i  Rep.  in  Ch.,  138  ;  2  Story's  Confl.  of  Laws, 
64  ;  Sug.  V.  &  P.,  Ch.  8,  Sec.  3.  In  Iowa,  the  Code,  Sec.  3665,  provides  that 
the  statute  shall  not  apply- "where  the  purchase  money,  or  any  part  thereof,  has 
been  received  by  the  vendor."  And  see  Fairbrother  v.  Shaw,  4Clarke,  Iowa,  570,  . 
In  Townsend  v.  Houston,  i  Harring.  Del.,  532,  it  was  held  that  payment  of  a 
substantial  portion  of  the  purchase  money,  may  constitute  such  a  part  perform- 
ance of  a  parol  agreement  for  the  sale  of  land,  as  will  take  the  agreement  out  of 
the  statute  of  frauds.  The  ground  taken  by  the  court,  was  stated  by  Johns,  chan- 
cellor, thus  :  "  There  may  be  cases  in  which  payment  of  the  whole  or  part  of  the 
purchase  money,  will  amount  to  performance  of  a  parol  contract  concerning 
lands  ;  and  whenever  non-performance  on  the  part  of  the  vendor,  after  receiving 
the  purchase  money,  or  a  part  thereof,  would  put  the  party  into  a  situation  that 
is  a  fraud  upon  him  unless  the  agreement  is  performed,  the  court,  upon  the 
principle  of  preventing  fraud,  should  decree  specific  performance.  If  the  fact  of 
payment  is  connected  with  the  concurrent  act  of  the  vendor  receiving  and  appro- 
priating the  money  paid  as  purchase  money,  and  this  appears,  either  by  the  de- 
fendant in  his  answ^er  confessing  the  receipt  of  the  money  for  that  purpose,  as 
charged  in  the  bill,  or,  if  denied,  it  be  proved  upon  him  by  writing,  as  by  letter 
under  his  hand,  or  other  written  evidence;  or  if  the  defendant  confesses  the  re- 
ceipt of  the  money,  but  says  he  borrov/ed  it  from  the  plaintiff,  and  had  it  not  in 
execution  of  the  agreement,  then  if  the  plaintiff  prove  the  receipt  of  the  money  by 
the  defendant  for  the  purpose  in  the  bill ;  in  all  such  cases,  and  upon  eveiy  princi- 
ple, it  seems  to  me  such  a  fact,  thus  appearing,  would  be  conclusive  evidence  of 
an  existing  agreement  of  which  it  was  part  performance,  and  which,  the  defend- 
ant having  carried  part  into  execution,  should  be  compelled  specifically  to  per- 
form the  whole."  See  Thompson  v.  Tod,  i  Pet.  C.  C,  388.  Where  the  com- 
plainant alleged  an  agreement  of  the  respondent  to  execute  a  new  lease  in  con- 
sideration that  the  complainant  would  pay  an  increased  rent,  and  also  alleged 
that  "  he  paid  the  rent  of  fifteen  hundred  dollars,  for  the  last  year,  as  part  and 
parcel  of  the  agreement  aforesaid,  and  in  performance  and  consideration  there- 
of, and  not  otherwise,"  it  was  held  that  such  allegation  of  part  performance  was 
sufficient  to  take  the  case  out  of  the  statute  of  frauds.  Spear  v,  Orendorf,  26 
Md.,  37. 


366  STATUTE    OF    FRAUDS.  §   268. 

obvious  that  such  a  criterion  is  wholly  uncertain,  and  that 
it  only  raises  a  question,  without  establishing  any  fixed  rule. 
For  where  shall  the  line  be  drawn  between  what  may  be 
deemed  a  small,  and  what  a  considerable  part  of  the  pur- 
chase money  ?  Afterward,  the  court  refused  to  recognize 
any  such  distinction  ; '  and  it  is  now  no  longer  entertained, 
because  it  is  impossible  to  discriminate  between  substantial 
and  unsubstantial  part  payment  i'' and  "each  must,  upon 
principle,  stand  upon  the  same  reason,  namely,  that  it  is  a 
part  performance  in  both  cases,  or  not  in  either.'"  All  of 
the  later  authorities  therefore  agree  that  the  mere  payment 
of  money  will  not  entitle  a  vendee  to  the  specific  perform- 
ance of  a  parol  contract  for  the  purchase  of  an  interest  in 
land.*  So,  if  the  alleged  payment  consist  partly  of  services 
rendered,  and  partly  of  money,  some  other  act  must  be  shown 
to  have  been  done  of  such  a  nature  that  a  refusal  to  execute 
the  agreement  would  inflict  upon  the  pfarty  performing  the 
act  an  injury  amounting  to  fraud.'  Where  the  defendant, 
a  railroad  company,  verbally  agreed  to  convey  to  the  plain- 
tiff its  interest  in  real  estate  in  consideration  that  the  plain- 
tiff would  procure  and  pay  a  certain  amount  of  county 
warrants,  which  were  tendered  to  the  defendant's  agent, 
according  to  agreement,  but  the  defendant  refused  to  con- 


'  Clinan  v.  Cooke,  i  Sch.  &  Lef.,  22,  per  Lord  Redesdale. 

^  Watt  V.  Evans,  4  Y.  &  C.  Ex.,  579,     See  Hooper  ex  parte,  19  Ves.,  479. 

*  Story's  Eq.  Juris.,  Sec.  760, 

^O'Herlihy  V.  Hedges,  i  Sch.  &  Lef.,  129;  Alsopp  v.  Patten,  i  Vem.,  472  ; 
Leake  v.  Morris,  2  Ch.  Cas.,  135  ;  Lord  Pengall  v.  Ross,  2  Eq.  Cas.  Abr.,  46,  PI. 
12.  See  Good  v.  Meale,  Prec.  Ch.,  560  ;  Coles  v.  Trecothick,  9  Ves.,  234  ;  Frame 
V.  Dawson,  14  lb.,  388  ;  Jackson  v.  Cutwright,  5  Munf.,  303;  Mialhi  v.  Lassabe, 
4  Ala,  712  ;  Hart  v.  McLellan,  41  lb.,  251  ;  Black  v.  Black,  15  Ga.,  445  ;  Sites 
V.  Keller,  6  Ohio,  483;  Garner  v.  Stubbleheld,  5  Texas,  552;  Dugan  v.  Colville, 
8  lb.,  126  ;  Netherly  v.  Ripley,  21  lb.,  434;  Wood  v.  Jones,  35  lb.,  64;  Hood  v. 
Bowman,  Freeman,  Miss.,  Ch.  290  ;  Blanchard  v.  McDougal,  6  Wis.,  167  ;  Smith 
V.  Finch,  8  lb.,  245;  Parke  v.  Leewright,  20  Mo.,  80;  Underbill  v.  Allen,  18 
Ark.,  466;  Parker  v.  Wells,  6  Whart.,  153;  Workman  v.  Guthrie,  29  Pa.  St., 
445  ;  Lanz  v.  McLaughlin,  14  Minn.,  72  ;  Cole  v.  Potts,  10  N.  J.  Eq.,  67  ;  Blodgett 
V.  Hildreth,  103  Mass.,  404  ;  Cogger  v,  Lansing,  43  N.  Y.,  559  ;  Odell  v.  Montross, 
68  N.  Y.,  499.  See  Gilbert  v.  Trustees,  etc.,  12  N.  J.  Eq.,  180  ;  i  Fonbl.  Eq., 
Book  L,  Ch.  3,  Sec.  38;  i  Mad.  Ch.,  301 ;  Newland  on  Contracts,  Ch.  10,  p.  187. 

'  Horn  V.  Ludington,  32  Wis.,  73. 


§  269.       GROUND  OF  RULE  AS  TO  PAYMENT.         ^^"J 

vey,  it  was  held  that  the  contract  was  within  the  statute  of 
frauds,  and  could  not  be  enforced/ 

§  269.  Ground  of  rule  as  to  payment. — Several  reasons 
have  been  advanced  why  payment  of  the  purchase  money, 
in  whole  or  in  part,  is  not  sufficient  to  take  a  parol  agree- 
ment for  the  sale  of  land  out  of  the  statute.  It  has  been 
said  that  the  money  may  be  repaid,  and  the  parties  thus  be 
restored  to  the  situation  they  were  in  previous  to  the  con- 
tract, there  being  no  wrongful  intent  attributable  to  the 
vendor  if,  in  consequence  of  his  having  become  bankrupt, 
it  is  out  of  his  power  to  restore  the  amount  paid/  Again, 
it  has  been  contended  that  from  the  silence  of  the  4th  sec- 
tion of  the  statute  of  frauds  as  to  part  payment,  which  is 
mentioned  in  the  13th  section,  it  is  to  be  presumed  that  the 
Legislature  did  not  intend  that  part  payment  should  be  bind- 
ing in  the  case  of  the  sale  of  land/  But  the  main  ground 
relied  on,  and  the  one  chiefly  entitled  to  consideration,  is, 
"that  nothing  is  to  be  deemed  a  part  performance  which 
does  not  put  the  party  into  a  situation  which  is  a  fraud  upon 
him,  unless  the  agreement  is  fully  performed/'  *     The  part 

^  Wilson  V.  Chicago,  etc.,  R.R.  Co.,  41  Iowa,  443.  In  Glass  v.  Hulbert,  102 
Mass.,  24,  a  bill  was  filed  by  the  purchaser  of  a  lot  of  land,  after  receiving  the 
deed  and  pa}ing  the  purchase  money,  but  possession  not  taken,  for  relief  on  sev- 
eral grounds,  and,  among  others,  because  during  the  negotiation  for  the  sale  of 
the  lot  the  defendant  represented  that  it  included  land  which  it  did  not  include, 
and,  under  that  misrepresentation,  the  plaintiff  agreed  to  make  the  purchase.  It 
was  held,  in  reference  to  the  additional  land,  that  no  decree  could  be  made  for 
its  conveyance  in  the  absence  of  any  evidence  to  estop  the  defendant  from  plead- 
ing the  statute  of  frauds,  and  that  the  only  relief  was  by  an  action  for  damages. 
In  North  Carolina  even  the  payment  of  the  whole  purchase  money,  and  delivery 
of  possession  to  the  vendee,  will  not  dispense  with  a  writing  if  the  statute  be  in- 
sisted on.  Allen  v.  Chambers,  4  Ired.  Eq.,  125.  But  if  the  defendant  admit  the 
contract  and  the  part  performance,  the  court  will  decree  compensation  to  the 
plaintiff  for  his  payments  and  expenditures.  Dunn  v.  Moore,  3  Ired.  Eq.,  364 ; 
Winton  v.  Fort,  5  Jones  Eq.,  251  ;  Barnes  v.  Brown,  71  N.  C,  507. 

"^  Clinan  v.  Cooke,  i  Sch.  &  Lef,  22,  41.  Where  a  portion  of  the  purchase 
money  is  paid  under  a  parol  agreement  for  the  purchase  of  land,  and  the  vendee 
files  a  bill  for  specific  performance,  if  the  vendor  sets  up  the  statute  of  frauds  in 
defence,  he  will  be  decreed  to  repay  the  amount  received,  with  interest,  although 
by  the  agreement  it  was  to  be  forfeited,  unless  other  payments  were  made,  and 
the  vendor  is  not  entitled  to  be  allowed  for  his  losses  by  reason  of  the  premises 
remaining  vacant  during  the  time  he  waited  for  the  complainant  to  fulfil  the 
agreement.     Mialhi  v.  Lassabe,  4  Ala.,  710. 

^  Watt  V.  Evans,  4  Y.  &  C.  Ex.,  579.     See  13  Ves.,  461,  note. 

*  Story's  Eq.  Juris.,  Sec.  761  ;  Temple  v.  Johnson,  71  III,  13. 


o 


68  STATUTE    OF    FRAUDS.  §   269. 


performance  which  will  accomplish  that  result  must  be  not 
merely  of  that  nature  which  may  be  said  to  exist  in  every 
case  of  a  refusal  to  fulfil  an  agreement  after  having  re- 
ceived the  consideration,  but  which  consists  in  placing  the 
other  party  in  a  situation  to  be  held  liable  as  a  wrong-doer, 
or  in  some  other  way  of  being  made  the  victim  of  a  fraud, 
or  of  an  injury  in  the  nature  of  a  fraud,  on  account  of  acts 
done  in  part  execution  of  the  agreement,  unless  protected 
by  its  complete  fulfilment.  Part  payment  by  the  purchaser 
will  not  bind  him,  because  the  refusal  of  the  vendee  to  com- 
plete the  contract  after  paying  part  of  his  purchase  money, 
would  be  no  fraud  upon  the  part  of  the  seller,  but  the  pur- 
chaser's own  loss.  This  was  held,  where  the  heir  at  law 
of  the  purchaser  sought  the  enforcement  of  the  contract 
against  the  personal  representative  of  his  ancestor,  and  set 
up  his  payment  of  a  portion  of  the  purchase  money  as  a 
part  performance.'  So,  it  has  been  doubted  whether  any 
acts  which  admit  of  alternative  remedies  can  be  regarded  as 
part  performance,  there  being  no  fraud  when  the  remedy 
other  than  that  by  execution  of  the  contract,  is  pursued.' 
But  the  rule  that  the  payment  of  the  consideration  will  not 
in  general  be  deemed  such  a  part  performance  as  to  relieve 
a  parol  contract  from  the  operation  of  the  statute  of  frauds, 
does  not  apply  where  the  consideration  is  labor  and  services 
of  such  a  peculiar  character  that  it  is  impossible  to  estimate 
their  value  by  any  pecuniary  standard,  and  the  vendor  did 
not  intend  to  so  estimate  them.'  And  the  same  is  true 
where  a  party  has  paid  money  on  the  contract,  and  a  re- 
covery of  the  money  would  not  restore  him  to  his  former 
situation.* 

■  Buckmaster  v.  Harrop,  7  Ves.,  341  ;  13  lb.,  456. 

'^  Morgan  v.  Milman,  3  De  G.  M.  &  G.,  35,  per  Lord  Cranworth. 

3  Rhodes  v.  Rhodes,  3  Sandf.  Ch.,  279;  German  v.  Machin,  6  Paige  Ch.,  388. 

■•  Malins  v.  Brown,  4  N.  Y.,  403.  A  release,  by  a  wife,  of  an  interest  which  is 
within  her  own  option,  such  as  a  right  of  dower,  is  a  valuable  consideration. 
Where  a  husband  agreed  to  convey  a  tract  of  land  to  his  wife  if  she  would  re- 
lease her  dower  and  right  in  a  homestead,  it  was  held  that  the  case  was  taken 
out  of  the  statute  of  frauds  by  performance  when  the  deed  was  executed  and  de- 
livered.    Farwell  v.  Johnston,  34  Mich.,  342. 


§  270.  RULE    AS    TO    POSSESSION,    AND    REASON.  369 

§  270.  Rtile  as  to  possession,  and  reason. — It  may  be 
laid  down  as  a  general  proposition,  that,  subject  to  the 
rules  and  exceptions  which  will  hereafter  be  stated,  the  de- 
livery and  taking  possession  of  land  pursuant  to  a  parol 
contract  is  part  performance,  and  either  party  may  insist 
on  a  specific  performance  of  the  agreement.'  This  will 
especially  be  the  case  when  the  possession  is  preceded  or 
accompanied  by  the  payment  of  the  purchase  money.* 
Where  a  purchaser  of  land  at  a  foreclosure  sale  verbally 
agreed  with  one  who  was  in  possession  of  a  portion  of  the 
premises  under  a  contract  to  purchase  of  the  former  owner, 
that  upon  payment  of  the  price  paid  at  the  sale,  with  in- 
terest and  costs,  the  premises  should  be  conveyed  to  him, 
after  which  the  agreement  was  reaffirmed,  and  possession 
delivered  of  the  rest  of  the  premises,  and  the  original  ven- 
dee was  authorized  to  hold  and  rent  the  same,  which  he 
did,  and  made  payments  in  accordance  with  the  agreement 
of  more  than  one-third  of  the  purchase  money,  it  was  held 
that  such  possession  and  part  payment  took  the  agreement 
out  of  the  statute  of  frauds.'  More  has  sometimes  been 
claimed  from  the  fact  of  possession  of  land  under  a  con- 
tract for  its  sale,  than  can  properly  be  attached  to  such  an 
act.  Thus  it  has  been  said  that,  without  a  change  of  pos- 
session, there  cannot  be  a  part  performance,'  It  is,  how- 
ever, certain,  that  part  performance  as  between  a  vendor 
and  purchaser  may  consist  of  acts  irrespective  of  posses- 

'  Pugh  V.  Good,  3  Watts  &  Serg.,  56;  Burns  v.  Sutherland,  7  Pa.  St.,  103; 
Simmons  v.  Hill,  4  Har.  &  Mchen.,  251  ;  Davis  v.  Townscnd,  10  Barb.,  333; 
Bassler  v.  Niesly,  2  Serg.  &  Rawle,  352 ;  Jones  v.  Peterman,  3  lb.,  543 ; 
Letcher  v.  Crosby,  2  A.  K.  Marsh,  106;  Wilber  v.  Paine,  i  Ohio  St.,  251; 
Peifer  v.  Landis,  i  Watts,  392  ;  M'Farland  v.  Hall,  3  lb.,  37  ;  Miller  v.  Hower, 
2  Rawle,  53;  Abbott  v.  Draper,  4  Denio,  51  ;  Burns  v.  Sutherland,  7  Pa.  St., 
103;  Follmer  V.  Dale,  9  lb.,  83;  Smith  v.  Underdunck,  i  Sandf.  Ch.,  579;  Gill 
V.  Newell,  13  Minn.,  462.     Contra,  Cutlett  v.  Bacon,  33  Miss.,  269. 

■^  Pike  V.  Morey,  32  Vt.,  37;  Underbill  v.  Williams,  7  Blackf.,  125;  Tibbs  v. 
Barker,  i  lb.,  58  ;  Byrd  v.  Odeni,  9  Ala.,  755  ;  Wimberly  v.  Bryen,  55  Ga.,  198  ; 
Fitzsimmons  v.  Allen,  39  111.,  440;  Billington  v.  Welsh,  5  Binney,  129;  Gilday 
V.  Watson,  2  Serg.  &  Rawle,  407  ;  Drury  v.  Conner,  6  Har.  &  Johns,  288 ;  Sut- 
ton V.  Sutton,  13  Vt.,  71  ;  Adamc  v.  Fullam,  43  lb.,  592;  Ramsey  v.  Liston,  25 
111.,  114;  Stevens  v.  Wheeler,  lb.,  300;  Astor  v.  Lamoreaux,  4  Sandf.,  524; 
Kellums  v.  Richardson,  21  Ark.,  137. 

*  Merethen  v.  Andrews,  44  Barb.,  200.     ^  M'Kee  v.  Phillips,  9  Watts,  85. 
24 


3/0  STATUTE    OF    FRAUDS.  §   27O. 

sion.'  The  doctrine  of  part  performance  by  possession  be- 
ing well  established,  it  would  serve  no  useful  purpose  to 
consider  at  much  length  the  reasons  which  have  been  given 
for  its  support.  Mr.  Story  says :  "  If  upon  a  parol  agree- 
ment a  man  is  admitted  into  possession,  he  is  made  a  tres- 
passer, and  is  liable  to  answ^er  as  a  trespasser,  if  there  be  no 
agreement  valid  in  law  or  equity.  Now,  for  the  purpose 
of  defending  himself  against  a  charge  as  a  trespasser,  and  a 
suit  to  account  for  the  profits  in  such  a  case,  the  evidence 
of  a  parol  agreement  would  seem  to  be  admissible  for  his 
protection ;  and  if  admissible  for  such  a  purpose,  there 
seem.s  no  reason  why  it  should  not  be  admissible  through- 
out.'"' On  the  other  hand,  in  an  early  case  in  Pennsyl- 
vania, the  soundness  of  the  foregoing  view  was  questioned 
by  an  able  judge  in  the  following  pertinent  remarks:  "  See- 
ing that  the  English  act  gave  to  the  party  put  into  posses- 
sion under  the  parol  contract  for  the  purchase  of  the  land 
in  fee  an  implied,  at  least  if  not  an  express,  estate  at  will, 
which  was  sufficient  to  prevent  his  being  made  a  trespasser, 
until  the  vendor  entered  upon  him  and  gave  him  notice  to 
quit,  it  is  difficult  to  imagine  why  it  should  have  been 
deemed  necessary  to  carry  the  contract  into  complete  exe- 
cution in  order  to  protect  the  vendee  from  being  punished 
as  a  trespasser  for  having  entered  and  occupied  the  land 
before  he  had  notice  to  quit."'  A  more  reasonable  ground 
for  the  doctrine  in  question  is,  that  possession  by  a  vendee 
of  land  under  an  alleged  agreement  for  its  sale,  without 


'  Hollis  V.  Edwards,  i  Vern.,  159;  Mundy  v.  Joliffe,  5  Myl.  &  Cr.,  167; 
Rhodes  v.  Rhodes,  3  Sandf.  Ch.,  279.  Where  the  purchaser  of  a  farm,  who  had 
paid  the  purchase  money  and  taken  possession,  was  induced  by  the  fraudulent 
representations  of  the  vendor  to  accept  a  deed  which  omitted  a  portion  of  the 
land  verbally  agreed  to  be  conveyed,  it  was  held  that  the  vendee  was  not  pre- 
cluded by  the  statute  of  frauds  from  maintaining  a  suit  for  the  specific  perform- 
ance of  the  agreement.  Beardsly  v.  Duntly,  69  N.  Y.,  577.  The  doctrine  of 
equity,  that  payment  by  the  vendee  of  part  of  the  purchase  money,  and  taking 
possession  of  the  land  under  the  contract,  is  such  a  part  performance  as  takes 
the  case  out  of  the  statute  of  frauds,  is  not  applied  m  courts  of  law.  Barickman 
v.  Kuykendall,  6  Blackf.,  21. 

'  Story's  Eq.  Juris.,  Sec.  761. 

'  Allen's  Estate,  i  Watts  &  Serg.,  383,  per  Kennedy,  J. 


§   271-  POSSESSION    OF    LAND    BY    DONEE.  37I 

objection  from  the  vendor,  raises  a  prima  facie  presump- 
tion that  the  land  was  entered  upon  in  pursuance  of  the 
agreement,  and  with  the  intent  to  carry  it  out,  and  that  thus 
an  important  step  toward  fulfihiient  of  the  contract  has 
been  taken  with  the  acquiescence  of  the  vendor.  "The 
acknowledged  possession  of  a  stranger  of  the  land  of  an- 
other is  not  applicable,  except  on  the  supposition  of  an 
agreement,  and  has  therefore  constantly  been  received  as 
evidence  of  an  antecedent  contract.'"  So,  where  the  pos- 
session has  been  taken  without  consent,  and  the  owner  sub- 
sequently permits  the  intruder  to  keep  possession,  it  will 
operate  as  an  act  of  part  performance.' 

§  271.  Possession  of  land  by  donee. — If  there  be  an 
alleged  parol  gift  of  land,  the  mere  possession  of  the  donee 
does  not  constitute  part  performance  ;  there  being  no  valu- 
able consideration,  and  possession,  in  such  a  case,  not  being 
inconsistent  with  permission  simply  to  occupy  the  land.' 
Where  a  father  promised  his  son  a  farm,  provided  he  would 
support  his  parents  as  long  as  they  should  live,  pay  his  father's 
debts,  and  give  certain  money  to  his  brothers  and  sisters, 
and  the  son  paid  the  latter,  part  of  what  he  had  agreed  to  do, 
and  supported  his  parents  for  a  short  time,  during  which 
he  was  in  possession  of  the  farm  in  connection  with  them, 
it  was  held  that  there  was  not  such  a  part  performance  as 
took  the  agreement  out  of  the  statute.'  If,  however,  the 
gift  is  accompanied  by  circumstances  which,  together  with 
acts  and  declarations,  show  an  intention  on  the  part  of  the 
donor  to  bestow  the  land  absolutely  on  the  donee,  the  lat- 
ter will  be  entitled  to  specific  performance.  Thus,  wdiere 
the  plaintiff  executed  a  lease  of  certain  land  to  the  defend- 
ant for  one  year,  at  the  rent  of  one  dollar,  and  it  was  proved 
that  the  plaintiff  had  often,  after  the  date  of  the  lease,  shown 

1  Sir  T.  Plumer  in  Morphett  v.  Jones,  i  Swanst.,  181.  And  see  Butcher  v. 
Stapely,  i  Vern.,  363;  Pyke  v.  Williams,  2  lb.,  455. 

■^  Gregory  v.  Mighell,  18  Ves.,  328;  Pain  v.  Coombs,  i  De  G.  &  J.,  34,  46. 

'  Stewart  v.  Stewart,  3  Watts,  253  ;  Pinckard  v.  Pinckard,  23  Ala.,  649.  See 
ante,  §  187  ;  post,  §§  284-287. 

*  Cronk  v.  Trumble,  66  III.,  428. 


372  STATUTE    OF    FRAUDS.  §   2/2. 

by  his  acts  and  declarations,  that  he  had  given  the  lot  to 
the  defendant  as  a  reward  for  faithful  service,  and  that  the 
defendant  had  been  in  possession  of  the  land  ever  since — a 
period  of  twenty-four  years — and  had  paid  the  taxes,  it  was 
held  that  there  was  a  valid  gift.'  A  father  promised  his 
daughter,  who  w' as  about  to  get  married,  to  give  her  a  house 
as  a  wedding  present,  and  immediately  after  the  marriage 
he  put  the  daughter  and  her  husband  in  possession.  The 
house  was  at  the  same  time  subject  to  a  charge  in  favor  of 
a  building  society,  payable  in  instalments,  which  were  paid 
by  the  father  as  they  fell  due  during  his  life,  leaving  a  bal- 
ance unpaid  of  one  hundred  and  ten  pounds,  which  became 
due  shortly  after  the  father's  death.  It  was  held  that  pos- 
session of  the  house  was  a  part  performance  which  took  the 
case  out  of  the  statute  of  frauds,  and  that  as  the  father 
promised  to  give  the  house  free  from  incumbrance,  the  one 
hundred  and  ten  pounds  were  payable  out  of  his  personal 
estate." 

§  272.  What  deemed  a  sufficient  possessiojt. — The  pos- 
session of  the  vendee  of  real  estate,  to  enable  a  court  of 
equity  to  decree  specific  performance  of  a  parol  agreement, 
must  be  such,  that  the  refusal  of  the  vendor  to  complete, 
will  be  a  fraud  upon  the  vendee.'  Where  A.  agrees  to  con- 
vey the  house  in  which  he  lives  with  B.,  to  the  latter,  if  B. 
will  support  and  care  for  A.,  a  performance  on  the  part 
of  B.  during  the  life  of  A.,  is  sufficient  to  take  the  case  out 
of  the  statute  of  frauds,  and  the  agreement  will  be  enforced 


'  Mahon  v.  Baker,. 26  Pa.  St.,  519. 

-  Ungley  v.  Ungley,  L.  R.  4,  Ch.  D.  78  ;  Affd.,  5  lb.,  887, 

^  White  V.  Watkins,  23  Mo.,  423 ;  Chambers  v.  Lecompte,  9  lb.,  566.  In  an 
action  against  a  husband  to  foreclose  a  mortgage,  the  wife  filed  a  cross  com- 
plaint alleging  a  purchase  of  the  land  of  her  husband  before  the  mortgage  was 
given,  of  which  the  mortgagee  had  notice,  and  that  although  the  land  was  not 
conveyed  to  her,  yet  she  had  remained  in  possession  of  it  ever  since,  and  she 
asked  for  a  specific  performance  of  the  contract  of  sale.  Held  that  there  had 
been  no  part  performance  by  her  to  prevent  her  being  placed  in  the  same  situa- 
tion as  before,  and  that  the  sale  was  void.  Cuppy  v.  Hixon,  29  Ind.,  522.  Where 
a  party  has  possession  of  land  under  a  parol  contract  for  its  purchase,  and  aban- 
dons it,  equity  will  not  enforce  specific  execution.  Chambliss  v.  Smith,  30  Ala., 
366. 


§   272.         WHAT    DEEMED    A    SUFFICIENT    POSSESSION.  2>7 2> 

against  the  heirs  of  A."  A.  having  a  preemption  right  to 
land,  and  not  being  able  to  enter  it,  B.  verbally  agreed  to 
enter  it  in  his  own  name,  and  convey  it  to  A.  upon  the  pay- 
ment of  fifty  dollars  by  him  within  one  year,  with  interest. 
A.  continued  in  possession,  and  after  B.'s  death,  paid  the 
money  to  his  administrator,  and  it  was  held  that  he  was  en- 
titled to  specific  performance/  One  who  enters  into  pos- 
session of  land  under  a  verbal  agreement  for  a  lease  of  the 
same  for  one  year,  with  the  privilege  of  two  years  more,  at 
a  specified  price,  and  pays  the  rent  for  the  first  year,  is  en- 
titled to  a  decree  for  specific  performance  against  the  les- 
sor.' According  to  some  of  the  authorities,  mere  posses- 
sion, without  some  other  act,  such  as  the  payment  of  the 
consideration,  or  the  expenditure  of  money  on  the  land,  is 
never  sufficient  to  take  the  contract  out  of  the  statute.*  But 
this,  while  safe  as*a  general  rule,  seems  to  be  an  extreme  view 
which  should  admit  of  exceptions.  The  possession  must  be 
connected  with  the  agreement,  and  be  referable  to  it ;  and 
it  must  appear  to  have  been  taken  with  the  permission  of 
the  vendor.^  The  reason  of  this  is,  that  possession,  when 
it  is  such  an  act  as  frees  a  case  from  the  statute,  is  evidence 
to  show  a  part  performance  by  the  vendor,"  The  mere  con- 
tinuance of  a  previous  possession  after  the  sale  is  not  suf- 
ficient even  though  the  purchase  money  may  have  been  paid 
and  improvements  made.'  There  must  be  some  positive 
act  done  with  reference  to  the  agreement,  and  intended  to 

'  Watson  V.  Mahan,  20  Ind.,  225.  ^  Fisher  v.  Moolick,  13  Wis.,  321. 

^  Clark  V.  Clark,  49  Cal.,  586. 

■•  See  Moore  v.  Small,  19  Pa.  St.,  461  ;  Dougan  v.  Blocher,  24  lb,,  28  ;  Ballard 
V.  Ward,  89  lb.,  358. 

^  Lord  V.  Underdunck,  i  Sandf.  Ch.,  46;  Bean  v.  Valle,  2  Mo.,  103;  ante, 
§§261,  262.  . 

'  Jervis  v.  Smith,  i  Hoff.  Ch.,  470.  See  Wills  v.  Stradling,  3  Ves.,  381  ;  Gre- 
gory V.  Mighell,  18  lb.,  333;  Cole  v.  White,  i  Bro.,  409;  Morphett  v.  Jones, 
I  Svvanst.,  179;  Foote  v.  Mitchell,  i  B.  &  B.,  400;  Harris  v.  Knickerbacker,  5 
Wend.,  638  ;  Givens  v.  Calder,  2  Dessaus  Eq.,  171,  190  ;  Thompson  v.  Scott,  i 
McCord  Ch.,  39  ;  Hood  v.  Bowman,  Freeman  (Miss.)  Ch.,  290  ;  Wood  v.  Farmare, 
10  Watts,  195  ;  Aitkin  v.  Young,  12  Pa.  St.,  15  ;  Cristy  v.  Barnhart,  14  lb.,  260  ; 
CarroUs  v.  Cox,   15  Iowa,  455  ;  Moore  v.  Higby,  45  Ind.,  487, 

'  Pearson  v.  East,  36  Ind.,  27;  Carlisle  v.  Brennan,  67  lb.,  12  ;  Suman  v. 
Springate,  lb.,  115. 


374  STATUTE    OF    FRAUDS.  §  273. 

be  in  execution  of  it.'  Giving  instruction  to  a  scrivener  to 
draw  a  deed  of  partition,  or  other  writings  deemed  neces- 
sary for  carrying  an  agreement  for  partition  into  effect,  and 
going  on  to  the  premises,  and  measuring  off  and  designating 
the  lines  of  division  according  to  the  agreement,  for  the 
purpose  of  enabHng  the  scrivener  to  draw  the  writings,  and 
to  describe  the  several  allotments  with  precision  and  accu- 
racy, are  not  such  acts  as  w^ill  take  the  case  out  of  the  stat- 
ute.""  Where  the  alleged  sale  was  made  by  a  person  pre- 
tendino;  to  be  the  agent  of  the  owner  who  disavowed  the 
sale,  and  the  property  consisted  of  a  vacant  lot  adjoining 
the  warehouse  of  the  plaintiff  and  his  partner,  and  was  used 
after  the  agreement,  for  storing  lumber,  wagons,  and  like 
articles  of  the  plaintiff  and  the  firm,  it  was  held  not  such  a 
possession  as  would  take  the  case  out  of  the  statute/  A 
parol  license  or  right  to  mine,  becomes  a  valid  and  binding 
agreement  by  virtue  of  possession  taken  and  held  by  the 
licensee,  with  the  consent  of  the  licensor/  Where  under  a 
parol  agreement  for  the  sale  of  a  mining  claim,  the  vendee 
took  possession,  and  worked  the  mine  as  his  ow^n  under  the 
contract,  appropriating  the  proceeds  of  the  mine  to  his  own 
use,  and  paid  part  of  the  purchase  money,  it  was  held  that 
the  agreement  was  taken  out  of  the  statute/ 

§  273.  Time  of  possession. — If  a  party  has  been  permit- 
ted to  retain  the  possession  for  a  very  long  time,  this  will 
be  regarded  as  a  circumstance  against  permitting  the  statute 
to  be  set  up/    The  certainty  of  the  terms  of  a  parol  agree- 

'  Clinan  v.  Cooke,  i  Sch.  &  Lef.,  40 ;  O'Herlihy  v.  Hedges,  lb.,  129;  Ander- 
son V.  Chick,  I  Bailey  Eq.,  124;  Hatcher  v.  Hatcher,  i  McMullan  Eq.,  311  ; 
Poag  V.  Sandifer,  5  Rich  Eq.,  170.  In  Kine  v.  Balfe,  2  Ball  &  Beatty,  343,  Lord 
Manners  said  :  "  Whether  possession  be  an  unequivocal  act  amounting  to  part 
performance,  must  depend  upon  the  transaction  itself.  If  it  be  distinctly  referred 
to  the  contract  alleged  in  the  pleadings,  I  think  no  case  has  denied  that  it  is  part 
performance.  The  defendant  is  protected  from  liability  as  a  trespasser,  ajid  the 
plaintiff  is  disabled  from  dealing  with  any  other  person." 

■^  Gratz  V.  Gratz,  4  Rawle,  411.  ■*  Poland  v.  O'Connor,  i  Neb  ,  50. 

*  Anderson  v.  Simpson,  21  Iowa,  399.  ^  Tatum  v.  Brooker,  51  Mo.,  148. 

•  Blachford  v.  Kirkpatrick,  6  Beav.,  232.  Where  the  vendor  of  lands,  under 
a  parol  contract  for  their  purchase  and  conveyance,  caused  the  lands  to  be  sur- 
veyed, received  more  than  half  of  the  purchase  price,  and  put  the  vendee  in 
possession,  which  he  permitted  him  to  retain  for  several  years  without  taking 


§   2  74-  POSSESSION    TAKEN    UNDER    AGREEMENT.  375 

ment  for  the  sale  of  land,  the  long  lapse  of  time  during 
which  possession  was  held  under  it  (about  twenty-eight 
years),  the  value  of  the  improvements,  and  the  payment  of 
the  purchase  money,  were  held  to  render  it  a  peculiarly 
strong  case  for  specific  performance.'  Where  the  defend- 
ants had  the  enjoyment  of  land  for  more  than  twenty 
years  under  a  parol  agreement,  it  was  held  that  they  could 
not  shelter  themselves  behind  the  statute  of  frauds/  So, 
payment  of  part  of  the  purchase  money,  and  possession  of 
land  for  eight  years,  was  held  to  entitle  the  purchaser  to 
the  specific  performance  of  a  parol  agreement  to  convey.' 
In  another  case,  the  land  having  been  assessed  to  the  ven- 
dee, with  the  vendor's  consent,  for  seven  years  previous  to 
the  suit,  and  the  vendor  having  admitted  that  he  had  given 
the  vendee  possession,  it  was  held  sufficient  to  take  the 
case  out  of  the  statute." 

§  274.  Possessio7i  must  be  taken  under  agreement. — - 
Where  the  possession  can  be  referred  to  any  other  source 
than  the  parol  contract,  or  to  a  different  contract,  the  stat- 
ute applies.'  Thus,  if  a  vendor  sell  to  a  vendee  in  posses- 
sion as  tenant,  the  possession  is  referred  to  the  original 
tenancy,  and  not  to  the  contract  of  sale.'    So  with  a  tenant 

steps  to  put  an  end  to  it,  it  was  held  that  these  acts  of  the  vendor  constituted 
such  a  part  performance,  as  to  take  the  case  out  of  the  operation  of  the  statute 
of  frauds.     Bomier  v.  Caldwell,  8  Mich.,  463. 

'  Rhea  v.  Jordan,  28  Gratt.,  678.     See  Lester  v.  Lester,  lb.,  737. 

*  Murray  v.  Jayne,  8  Barb.,  612.     '  Knickerbocker  v.  Harris,  i  Paige  Ch.,  209. 

*  Miranville  v.  Silverthorn,  i  Grant,  Pa.,  410.  A.  sold  land  to  B.  by  a  parol 
agreement,  and  B.  went  into  possession.  After  one  year,  the  land  was  surveyed 
in  the  presence  of  B.'s  agent,  who  made  no  objection  to  the  title  or  quantity. 
Two  years  later,  B.  wrote  to  A.'s  son,  to  whom  the  land  had  been  devised,  ex- 
cusing his  delay  in  making  payment,  and  saying  that  he  would  pay  when  able. 
A.'s  son  gave  him  notice  not  to  use  the  land  any  more  until  payment  was  made. 
Held,  that  the  notice  not  to  use  the  land  was  an  affirmance  of  the  contract,  and 
that  as  B.  had  been  in  possession  five  years,  the  agreement  was  taken  out  of  the 
statute  of  frauds.     Palmer  v.  Richardson,  3  Strobh.  Eq.,  16. 

^  Danforth  v.  Laney,  28  Ala.,  274 ;  Charpiot  v.  Sigerson,  25  Mo.,  63  ;  Cole  v. 
Potts,  10  N.  J.  Eq.,  67  ;  Knoll  v.  Harvey,  19  Wis.,  99 ;  Sitton  v.  Shipp,  65  Mo., 
•  297;  Tate  v.  Jones,  16  Fla.,  216.  While  negotiations  for  the  sale  of  real 
estate  were  pending,  the  person  wishing  to  purchase,  temporarily  resided  with 
the  owner  as  his  guest.  Held  not  to  be  such  a  part  performance  as  to  take  the 
case  out  of  the  statute  of  frauds.     Davis  v.  Moore,  6  Rich.,  215. 

*  Mahana  v.  Blunt,  20  Iowa,  142  ;  Rosenthal  v.  Freeburger,  26  Md.,  75  ;  ante, 
§263. 


2^6  STATUTE    OF    FRAUDS.  §   275. 

in  possession,  in  case  of  a  parol  agreement  for  different 
terms  of  holding,  if  no  acts  are  performed  which  clearly 
show  that  the  possession  is  continued  under  the  last  agree- 
ment, it  will  be  referred  to  the  original  tenancy,  and  such 
parol  contract  will  be  void.'  The  attornment  of  a  tenant 
to  satisfy  the  statute,  must  be  formal,  public,  and  explicit. 
A.,  the  tenant  of  B.,  the  owmer,  was  told  by  him,  that  if  he 
wanted  to  live  on  the  premises  any  longer,  he  must  rent  it 
from  C.  ;  but  offering  to  pay  C.  the  rent  at  the  end  of  the 
year,  he  was  told  to  settle  with  B.  A.,  when  about  to  quit, 
ofave  notice  to  C.  But  when  he  moved  out,  B.  entered, 
and  afterward  remained  in  possession,  C.  had  paid  a  large 
part  of  the  purchase  money.  Held,  that  there  had  not 
been  such  a  palpable  and  notorious  transfer  of  possession 
in  pursuance  of  the  contract,  as  took  it  out  of  the  statute." 
But,  w^here  under  a  parol  agreement  for  the  sale  of  land 
which  is  under  lease,  the  landlord  tells  the  purchaser  that 
the  rent  is  to  belong  to  him,  and  this  is  repeated  to  the 
tenant,  who  agrees  to  it,  the  purchaser  is  seized  of  the 
land.'  If,  however,  a  purchaser  by  parol  take  possession 
under  his  contract,  and  afterward  attorn  to  the  vendor  as 
landlord,  or  fix  upon  himself  any  other  character  than  the 
one  with  which  he  entered,  he  abandons  his  equities,  and 
his  possession  is  referred  to  his  new  agreement.* 

s^  275.  Possession  taking  agreement  out  of  statute. — The 
possession  of  a  tenant  after  the  expiration  of  the  lease, 
w^hen  it  can  be  referred  only  to  an  agreement  for  a  renewal, 
has  been  deemed  a  part  performance  of  such  an  agree- 
ment.' Where,  in  a  suit  for  specific  performance  by  a  ten- 
ant against  his  landlord,  the  bill  alleged  that,  toward  the 
close  of  the  term,  a  parol  agreement  was  entered  into  be- 


'  Armstrong  v.  Kattenhorn,  il  Ohio,  265;  Anthony  v.  Leftwitch,  3  Rand, 
238 ;  Jones  v.  Peterman,  3  Serg.  &  Rawle,  543 ;  Johnson  v.  Glancy,  4  Blackf., 
94;  Crawford  v.  Wick,  18  Ohio  St.,  190. 

"  Brawdy  v.  Brawdy,  7  Pa.  St.,  157. 

'Williams  v.  Landman,  8  Watts  &  Serg.,  55. 

♦Rankin  v.  Simpson,  19  Pa.  St.,  471.      'Dowell  v.  Dew,  i  Y.  &  C.  C.  C,  345. 


§  275-    POSSESSION  TAKING  AGREEMENT  OUT  OF  STATUTE.   37/ 

tween  the  plaintiff  and  defendant,  that  if  plaintiff  would 
pay  an  increased  rent,  the  defendant  would  give  him  a  new 
lease  for  one  year,  with  the  privilege  of  two  or  three  years, 
and  that  plaintiff  remained  in  possession  after  the  expira- 
tion of  the  original  lease,  and  paid  the  increased  rent,  "as 
part  and  parcel  of  the  agreement  aforesaid,  and  in  perform- 
ance and  consideration  thereof,  and  not  otherwise,  and  that 
plaintiff  elected  to  take  a  new  lease  for  three  years,  which 
the  defendant  refused  to  execute,  but  \yas  about  to  eject 
him,"  it  was  held  that  the  bill  presented  a  case  which  pruna 
facie  entitled  the  plaintiff  to  an  injunction  until  the  coming 
in  of  the  answer,  and  further  order/  So,  a  parol  agree- 
ment having  been  entered  into  for  a  lease,  the  terms  of 
which  were  settled,  the  lessee,  by  direction  of  the  lessor, 
instructed  the  solicitor,  who  acted  for  both  parties,  to  pre- 
pare a  written  contract.  The  solicitor  made  a  memoran- 
dum of  the  terms  thus  stated  to  him,  and  from  it  wrote  out 
a  draft  contract  containing  these  and  other  terms,  which  he 
submitted  to  the  lessor,  who,  without  objecting  to  it,  gave 
the  lessee  possession,  and  directed  the  solicitor  to  draw  a 
lease  in  accordance  with  the  draft  contract.  This  having 
been  done,  the  lessor  objected  to  it,  and  gave  the  tenant 
notice  to  quit.  It  was  held  that  there  was  part  perform- 
ance of  the  agreement,  and  it  was  accordingly  enforced. "" 
On  the  same  principle,  parol  agreements  in  cases  of  family 
arrangements  which  involve  the  giving  up,  partition,  or  ex- 
change of  land,  when  followed  by  uninterrupted  exclusive 
possession  pursuant  to  the  agreement,  will  be  specifically 
enforced.'  Where  a  father,  having  a  written  contract  for 
the  purchase  of  land,  and  having  also  agreed  by  parol  with 
his  son,  that  the  land  should  be  equally  divided  between 
them,  it  was  conveyed  by  the  vendor,  and  the  father  and 
son  each  remained  in  possession  of  his  respective  part  dur- 
ing the  life  of  the  father,  it  was  held  that  such  parol  agree- 

I  Spear  v.  Orendorf,  26  Md.,  37.  ""  Pain  v.  Coombs,  i  De  G.  &  J.,  34. 

^  Stockley  v.  Stockley,  i  V.  &  B.,  23 ;  Neale  v.  Neale,  i  Ke.,  672. 


^yS  STATUTE    OF    FRAUDS.  §   276. 

ment  was  taken  out  of  the  statute  of  frauds.*  The  same 
was  held  in  the  followinor  case  :  A  father  havinof  bouiaht 
land  with  his  son's  money,  it  was  agreed  between  them, 
that  the  amount  should  apply  on  the  sale  by  the  father  to 
the  son  of  certain  land,  and  that  the  son  should  pay  annu- 
ally a  given  sum  to  the  father  for  life.  The  son  was  put 
into  possession  of  the  second  named  land  pursuant  to  the 
agreement,  and  he  notified  his  tenant  of  the  first  named 
land,  who  thereafter  paid  rent  to  the  father,  and  the  assess- 
ments were  respectively  changed.* 

§  276.  Possession  must  be  absolute. — The  possession  must 
be  open,  notorious,  and  actual,  and  not  merely  technical ; 
and  it  must  be  exclusive,  and  not  in  connection  with  the 
vendor  as  a  tenant  in  common  or  joint  tenant/  Therefore, 
a  tenant  in  possession  cannot  be  a  purchaser  by  parol  with- 
out a  formal  surrender  of  his  possession  under  the  lease, 
and  a  resumption  of  it  under  the  contract  of  purchase."  A 
parol  contract  for  the  sale  of  real  estate  by  one  partner  to 
another,  will  not  be  enforced,  when  the  only  change  of 
possession  is  the  withdrawal  of  the  vendor  and  the  continu- 
ance of  the  vendee  in  possession.'  The  taking  of  possession 
of  one  of  several  parcels  of  land  embraced  in  a  parol  agree- 
ment, and  agreed  to  be  sold  for  a  gross  sum,  would  be  suf- 
ficient." But  the  taking  possession  of  one  of  several  lots  of 
land,  sold  by  distinct  agreements,  would  only  relieve  from 
the  operation  of  the  statute,  the  agreement  in  relation  to 
that  particular  lot.' 

1  Rhine  v.  Robinson,  27  Pa.  St.,  30.  ^  Lee  v.  Lee,  9  Pa.  St.,  169. 

3  Haslett  V.  Haslett,  6  Watts,  469  ;  Robertson  v.  Robertson,  9  lb.,  32  ;  Sage 
V.  M'Guire,  4  Watts  &  Serg.,  228  ;  Frye  v.  Shepler,  7  Pa.  St.,  91  ;  Blakeslee  v. 
Blakeslee,  32  lb.,  237  ;  Wible  v.  Wible,  i  Grant  Pa.,  406 ;  Workman  v.  Guthrie, 
29  Pa.  St.,  495. 

*  Greenlee  v.  Greenlee,  22  Pa.  St.,  225  ;  a7ite,  §  263. 

*  Wilmer  v.  Farris,  40  Iowa,  309. 

'  Smith  V.  Underdunck,  i  Sandf.  Ch.,  579  ;  Jones  v.  Pease,  21  Wis.,  644.  Con- 
tra, Allen's  estate,  i  Watts  &  Serg.,  383.  The  rule  is  the  same  in  the  case  of  a 
sale  of  personal  property.  Elliott  v.  Thomas,  3  M.  &  W.,  170;  Scott  v.  Eastern 
Co.  R.R.,  12  lb.,  33  ;  Price  v.  Lea,  i  B.  &  C.,  156  ;  Briggs  v.  Wisking,  25  Eng. 
L.  &  Eq.,  257;  Mills  v.  Hunt,  17  Wend.,  333;  S.  C,  20  lb.,  431  ;  McKnight  v. 
Dunlop,  5  N.  Y.,  537  ;  Boutwell  v.  O'Keefe,  32  Barb.,  434. 

'  Buckmaster  v.  Harrop,  7  Ves.,  341. 


§§   277)   278.        POSSESSION    UNDER    AGREEMENT.  379 

§  277.  Possession  by  several. — A  parol  partition  between 
the  several  grantees  of  a  tract  of  land,  followed  by  actual 
possession,  is  valid  and  binding ;'  but  not  if  possession  be 
not  taken.*  Where  the  parties  to  an  action  of  ejectment 
agree  verbally  that  judgment  shall  be  rendered  for  the 
plaintiff,  but  that  his  title  embraces  only  part  of  the  prop- 
erty, and  that  the  defendant's  title  is  good  for  the  balance, 
and  that  the  parties  will  hold  in  severalty  their  respective 
shares  pursuant  to  the  agreement,  such  agreement,  if  fol- 
lowed by  possession  on  the  part  of  each  according  to  the 
title  thus  conceded,  is  valid  and  binding.  It  is,  in  effect, 
a  settlement  of  the  claims  of  parties  to  such  portion  of  the 
land  as  each  is  entitled  to,  and  a  surrender  of  all  claim  to 
any  other  part  than  that  agreed  to  belong  to  each.  "  There 
is  no  substantial  difference  in  principle,  between  such  an 
agreement,  when  carried  out  by  taking  possession  in  sever- 
alty under  it,  and  a  parol  partition  of  land  between  parties 
in  possession  and  claiming  title,  accompanied  and  followed 
by  possession  by  each  party  of  the  part  conceded  to  him." ' 

§  2  78.  Possession  tinder  agree77tent  as  to  division  line. — • 
An  express  parol  agreement  to  settle  a  disputed  boundary 
is  valid,  if  executed  immediately,  and  possession  accompa- 
nies and  follows  such  agreement,  and  it  will  preclude  the 
parties  from  afterward  controverting  it.*  Such  an  agree- 
ment is  not  a  conveyance  of  land,  but  only  the  ascertain- 

^  Corbin  v.  Jackson,  14  Wend.,  619;  Ebert  v.  Wood,  i  Binney,  216;  Cum- 
mins V.  Nutt,  Wright,  713;  Piatt  v.  Hubbel,  5  Ohio,  243;  Calhoun  v.  Hays,  8 
Watts  &  Serg.,  127;  Wilday  v.  Bonney,  31  Miss.,  644;  Wilhams  v.  Pope, 
Wright,  406. 

^  Slice  V.  Derrick,  2  Rich.,  627.  In  Maryland,  in  a  suit  for  partition,  the  parties 
are  not  directed  to  execute  mutual  conveyances  to  vest  the  title  in  severalty ;  but 
the  iinal  decree  confirms  the  petition,  and  declares  that  each  party  shall  hold  his 
share  in  severalty,  and  this  decree  operates  as  a  conveyance.  Young  v.  Frost,  i 
Md.,  377.  As  to  establishment  of  division  line  by  the  acceptance  of  an  award, 
see  Sweeny  v.  Miller,  34  Me.,  388. 

^  City  of  Natchez  v.  Vandervelde,  31  Miss.,  706,  per  Handy,  J. 

■•  Boyd  v.  Graves,  4  Wheat.,  513  ;  Jackson  v.  Dyeling,  2  Caines,  198  ;  Lindsay 
v.  Springer,  4  Harring.,  Del,  547;  Fuller  v.  County  Commrs.,  15  Pick.,  81  ; 
Blair  v.  Smith,  16  Mo.,  273;  Jackson  v.  Corlear,  11  Johns,  123  ;  Kip  v.  Norton, 
12  Wend.,  127  ;  Adams  v.  Rockwell,  16  lb.,  285  ;  Davis  v.  Townsend,  10  Barb., 
333,  McCoun,  J.,  dissenting ;  Yarborough  v.  Abernathy,  Meigs,  413. 


380  STATUTE    OF    FRAUDS.  §   279. 

ment  of  land  already  conveyed,  by  the  recognition  by  the 
parties  of  the  true  line  of  demarcation  between  their  lands, 
and  of  thus  confnming  their  title  to  the  same.'  If,  how- 
ever, there  is  no  dispute  as  to  the  boundary,  but  the  parties 
have  claimed  and  occupied  respectively  up  to  the  true  line, 
a  parol  agreement  to  change  it  would  constitute  an  agree- 
ment for  the  conveyance  of  an  estate  or  interest  in  land ; 
and  it  would  therefore  be  within  the  statute,  and  void.'  It 
has  been  held  that  if,  under  a  parol  agreement  for  the  set- 
tlement of  a  disputed  boundary,  a  valuable  consideration 
were  paid,  it  would  be  evidence  of  the  transfer  or  surrender 
of  an  interest  in  land,  and  therefore  within  the  statute.' 

§  279.  Possession  tipon  exchange  of  pi^opei'ty. — The 
specific  performance  of  a  parol  agreement  for  the  exchange 
of  real  estate,  will  be  decreed  when  the  agreement  has  been 
carried  into  effect  in  whole  or  in  part."  There  is  no  differ- 
ence between  a  parol  sale  and  a  parol  exchange  of  lands,  in 
regard  to  the  requisites  to  take  it  out  of  the  statute  of  frauds ; 
though  there  is  a  difference  in  the  evidence  which  estab- 
lishes the  possession.'  Although  a  parol  exchange  of  lands 
cannot  be  supported  without  a  corresponding  delivery  of 
possession  of  each  tract,  yet  the  evidence  in  case  of  ex- 
change with  reference  to  the  time  of  possession,  will  admit 
of  greater  latitude  than  in  the  case  of  a  parol  sale.°  If  the 
evidence  shows  an  unequivocal  and  complete  taking  posses- 
sion of  one  of  the  subjects  of  an  exchange,  by  the  party 
owning  the  other  subject,  it  strengthens  the  evidence  of 
possession  taken  by  the  opposite  party  of  the  corresponding 
subject.     Proof  of  possession  that  might  seem  weak  and 

'  Houston  V.  Mathews,  i  Yerg.,  118. 

"^  Gilchrist  v.  McGee,  9  Yerg.,  455  ;  Davis  v.  Townsend,  supra  ;  Bay  v.  Bas- 
kin,  12  Sm.  &  Marsh,  428. 

'  Carroway  v.  Anderson,  i  Humph.,  6i. 

*  Johnston  v.  Johnston,  6  Watts,  370 ;  Caldwell  v.  Carrington,  9  Pet.,  86  ; 
Beebe  v,  Dowd,  22  Barb.,  255;  Bennett  v.  Abrams,  41  lb.,  619;  Parrill  v. 
McKinley,  9  Gratt.,  i. 

'  Moss  V.  Culver,  64  Pa.  St.,  414.     See  ante,  %  261,  note. 
^      Reynolds  v.  Hewitt,  27  Pa.  St.,  176. 


§  28o.     GENERAL  RULE  AS  TO  IMPROVEMENTS.        38 1 

inconclusive,  in  the  case  of  a  parol  sale,  is  thus  made  con- 
vincing in  the  case  of  an  exchange.'  A  parol  exchange  of 
land  may  be  valid,  although  each  party  does  not  take  im- 
mediate possession  of  his  part.' 

§  280.  General  rule  as  to  improvements. — As  the  mere 
possession  of  land,  by  the  vendee,  under  a  parol  agreement 
for  its  sale,  may,  as  we  have  seen,  under  certain  circum- 
stances, constitute  such  a  part  performance  as  will  take  the 
agreement  out  of  the  statute,  much  more  must  this  be  the 
case,  when  the  vendee,  relying  on  the  contract,  and  with 
the  knowledge  and  assent  of  the  vendor,  has  expended 
money  and  made  valuable  improvements  on  the  land  ;  for 
it  is  manifest  that,  while  possession  is  consistent  with  a  ten- 
ancy at  will,  the  making  of  considerable  expenditures,  can 
reasonably  be  referred  only  to  some  agreement  for  a  sub- 
stantial interest  in  the  property.  Moreover,  in  the  case  of 
mere  possession,  the  vendee  can  frequently  be  fully  com- 
pensated in  damages  for  non-fulfilment  on  the  part  of  the 
vendor ;  while  improvements  are  often  of  such  a  nature 
that  there  can  be  no  adequate  redress  for  their  loss.  Be- 
sides, it  would  be  unjust,  and  contrary  to  the  principles  of 
equity,  to  permit  a  vendor,  after  money  had  been  expended 
on  the  property,  and  its  character  changed  by  the  vendee  on 
the  faith  of  the  agreement,  to  disavow  it,  and  thus  deprive 
the  vendee  of  the  fruits  of  his  enterprise.  The  rule  is 
therefore  well  established,  that  when  the  vendee  has  been 
let  into  possession  under  a  parol  contract,  and  made  valua- 
ble improvements,  it  constitutes  part  performance,  and  takes 
the  case  out  of  the  statute.'     Where  the  plaintiffs  w^ere  in- 

'  Moss  V.  Culver,  supra,  per  Agnew,  J. 

''■  Miles  V.  Miles,  8  Watts  &  Serg.,  135. 

^  Wills  V.  Stradling,  3  Ves.,  378  ;  Savage  v.  Foster,  5  Yin.  Abr.,  524,  PI.  43, 
9  Mod.,  37 ;  Sutherland  v.  Briggs,  i  Hare,  26  ;  Stockley  v.  Stockley,  i  V.  &  B.; 
23 ;  Toole  v.  Medlicott,  i  Ball  &  B.,  393  ;  Mundy  v.  Joliffe,  5  My.  &  Cr.,  167  ; 
Surcome  v.  Pinniger,  3  De  G.  M.  &  G.,  571  ;  Newton  v,  Swazey,  8  N.  H.,  9. 
Tilton  V.  Tilton,  9  lb.,  385  ;  Annan  v.  Merritt,  13  Conn.,  478  ;  Dugan  v.  Colville, 
8  Texas,  126;  Grant  v.  Ramsey,  7  Ohio  St.,  157:  Blackney  v.  Ferguson,  3  Eng. 
Ark.,  272  ;  Casler  v.  Thompson,  3  Green  Ch.,  59;  Mason  v,  Wallace,  3  McLean, 
148  ;  Sater  v.  Hill,  10  Ind.,  176;  Kidder  v.  Barr,  35  N.  H.,  236 ;  Mims  v.  Lock- 


382    •  STATUTE    OF    FRAUDS.  §   28 1. 

duced  to  enter  upon  the  execution  of  an  oral  agreement  for 
the  sale  and  purchase  of  land  with  the  knowledge  and  acqui- 
escence of  the  defendant,  by  taking  possession,  making  im- 
provements, and  paying  part  of  the  purchase  money,  it  w^as 
held  that  the  refusal  of  the  defendant  to  complete,  was  in 
the  nature  of  a  fraud,  and  that  he  was  estopped  to  set  up 
the  statute  of  frauds  in  defence/  In  another  case  the  plain- 
tiff, who  had  been  the  lessee  of  an  inn  and  w^as  still  in  pos- 
session, entered  into  a  verbal  agreement  with  the  owner  for 
a  new  lease  at  a  specified  rent,  for  the  term  of  thirty  years. 
Thereupon,  the  plaintiff  agreed  to  sub-let  for  the  whole  of 
the  term  at  an  increased  rent,  and  his  sub-lessee  expended 
money  in  alterations  and  repairs  with  the  knowledge  and 
approval  of  the  owner.  It  was  held,  reversing  the  decision 
of  the  court  below,  that  the  outlay  by  the  sub-lessee  was  as 
much  a  part  performance  of  the  agreement  as  if  made  by 
the  lessee,  and  that  the  plaintiff  was  therefore  entitled  to  a 
decree  for  specific  performance." 

§  281.  Property  must  have  been  enhanced  in  value. — 
Improvements  made  by  a  vendee,  to  constitute  part  per- 
formance, must  be  of  a  permanent  nature,  and  such  as  will 

ett,  33  Ga.,  9;  WiUiston  v.  Williston,  41  Barb.,  635;  Hoffman  v.  Fett,  39 
Cal.,  109;  Green  v.  Finn,  35  Conn.,  178;  Cumming's  v.  Gill,  6  Ala.,  562  ;  De- 
spain  V.  Carter,  21  Mo.,  331  ;  Neatherly  v.  Ripley,  21  Texas,  434;  School  Dis- 
trict V.  MacLoon,  4  Wis.,  79  ;  Tohler  v.  Folsom,  i  Cal.,  207  ;  Massey  v.  Mcll- 
waine,  2  Hill  (S.  C.)  Ch.,  421  ;  Finucane  v.  Kearney,  Freeman  (Miss.)  Ch.,  65;  Out- 
enhouse  v.  Burleson,  11  Texas,  87  ;  Johnson  v.  McGruder,  15  Mo,  365  ;  Blunt  v. 
Tomlin,  27  111.,  93;  Mason  v.  Blair,  33  lb.,  194;  Bomier  v.  Caldwell,  Harring. 
(Mich.)  Ch.,  67  ;  Moreland  v.  Lemasters,  4  Blackf.,  383  ;  Brock  v.  Cook,  3  Porter, 
464  ;  Edwards  v.  Fry,  9  Kansas,  417  ;  Gregg  v.  Hamilton,  12  lb.,  333;  Clayton 
V.  Frazier,  33  Texas,  91  ;  Johnson  v.  Bowden,  37  lb.,  621  ;  Howe  v.  Rogers,  32 
lb.,  218;  Freeman  v.  Freeman,  4.3  N.  Y.,  34;  Patterson  v.  Copeland,  52  How. 
Pr.,  460  ;  Perkins  v.  Hadsell,  50  111.,  216  ;  Shirley  v.  Spencer,  4  Gilman,  583  ; 
Thornton  v.  Henry,  2  Scam.,  218  ;  Ingles  v.  Patterson,  36  Wis.,  373  ;  Kelly  v. 
Stanberry,  13  Ohio,  408;  Haines  v.  Haines,  6  Md.,  435  ;  Vickers  v.  Sisson,  10 
W.  Va.,  12  ;  Tracy  v.  Tracy,  14  lb,,  243.  "  Rendering  a  party  liable  as  a  tres- 
passer by  repudiating  an  oral  agreement  with  him,  can  not  be  a  greater  fraud 
than  subjecting  him  by  such  repudiation  to  the  loss  of  improvements."  Pfififner 
V.  Stillwater  &  St.  Paul  R.R.Co.,  23  Minn.,  343.  The  following  is  a  broad  state- 
ment of  the  rule  :  "  A  verbal  contract  for  the  sale  of  land,  will  be  enforced,  where 
it  is  shown  to  have  been  fairly  made,  on  a  valuable  consideration,  a  considerable 
portion  of  the  purchase  money  paid,  no  unreasonable  delay  in  paying  the  whole, 
possession  taken,  improvements  made,  no  disposition  shown  by  the  plaintiff  to 
evade  the  contract,  and  no  evidence  of  hardship."  D'Wolf  v.  Pratt,  42  111.,  198. 
'  Potter  V.  Jacobs,  in  Mass.,  32.         "^  Williams  v.  Evans,  L.  R.  19,  Eq.  547. 


§   28l.  PROPERTY    ENHANCED    IN    VALUE.  383 

not  reasonably  admit  of  compensation  in  damages  ; '  and  be 
consistent  with,  and  made  on  the  faith  of,  the  contract.' 
Moreov^er,  they  must  be  beneficial  to  the  property,  and  a 
sacrifice  to  the  party  making  them.'  If,  therefore,  they  do 
not  exceed  in  value  what  the  use  of  the  premises  is  worth 
to  the  vendee,  they  are  not,  in  themselves,  any  ground  for 
the  enforcement  of  the  contract*  So,  the  vendee,  although 
he  has  been  given  possession,  and  made  improvements, 
must,  in  order  to  entitle  himself  to  specific  performance, 
show  performance,  or  a  willingness  and  readiness  to  per- 
form on  his  part'     If  the  contract  is  such  that  it  will  not 

1  Dougan  v.  Blocher,  24  Pa.  St.,  28;  Hamilton  v.  Jones,  2  Gill  &  Johns,  127. 
It  has  been  maintained  that  as  money  spent  in  repairs  is  susceptible  of  being 
made  good,  such  expenditures  ought  not  to  be  regarded  as  part  performance. 
Sir  William  Grant,  in  Frame  v.  Dawson,  14  Ves.,  386.  And  see  O'Reilly  v. 
Thompson,  2  Cox,  271  ;  and  they  will  not  be,  when  the  acts  relied  on  may  be  the 
subjects  of  an  action  for  damages.  South  Wales  R.R.  Co.  v.  Wythes,  I  K.  &  J., 
186.  There  are,  however,  many  acts  admitting  of  compensation,  which  yet 
amount  to  such  part  performance  as  that  the  court  will  enforce  the  parol  agree- 
ment. Where  the  law  makes  payment  of  an  auction  duty  essential  to  the  con- 
tract, such  payment  will  not  constitute  a  part  performance.  Buckmaster  v.  Har- 
rop,  7  Yes.,  346  ;  13  lb.,  456  ;  nor  the  payment  of  additional  rent.  O'Herlihy  v. 
Hedges,  i  Sch.  &  Lef.,  123  ;  although  it  has  been  said  that  if  shown  or  admitted 
to  have  been  on  the  foot  of  the  agreement,  it  is  a  circumstance  of  part  perform- 
ance. Wills  V.  Stradling,  3  Ves.,  378  ;  "  But  that  would  be  to  infer  an  agreement, 
not  from  acts,  but  from  evidence,  with  regard  to  the  acts,  Vv'hich  seems  clearly 
inadmissible."     Fry  on  Specif.  Perform.,  184. 

-  Byrne  v.  Romaine,  2  Edvv.  Ch.,  445  ;  Peckham  v.  Barker,  8  R.  I.,  17  ;  Spauld- 
ing  v.  Congelman,  30  Mo.,  177  ;  Wood  v.  Thornly,  58  111.,  464. 

3  Gangwer  v.  Fry,  17  Pa.  St.,  491  ;  Moote  v.  Scriven,  33  Mich.,  500. 
*  Wack  V.  Sorber,  2  Whart.,  387  ;  Eckert  v.  Eckert,  3  Perm.,  332  ;  Ann  Berta 
Lodge  v.  Leverton,42  Texas,  18.     Contra,  Mims  v.  Lockett,  33  Ga.,  9.    The  im- 
provements in  such  case  would  raise  no  presumption  that  the  vendee  in  making 
them,  relied  on  the  contract  of  sale,  and  their  loss  would  be  no  injury  to  him. 

^  Simmons  v.  Hill,  4  Har.  &  M.,  259.  The  purchase  money  must  be  paid  or 
tendered  according  to  the  contract  although  the  vendee  may  have  been  let  into 
possession  and  made  improvements.  Holmes  v.  Holmes,  44  111.,  168  ;  McClellan 
V.  Darrah,  50  lb.,  249.  But  see  King  v.  Thompson,  9  Pet.,  204  ;  Haines  v.  Haines, 
4  Md.  Ch.,  133  ;  6  Md.,  435.  Where,  however,  a  purchaser  of  land  by  a  parol 
agreement,  who  was  in  possession  at  the  time,  made  permanent  improvements, 
which  added  50  per  cent,  to  the  value  of  the  land,  and  also  paid  taxes,  and  assess- 
ments, and  some  interest  money,  it  was  held  that  there  was  a  sufficient  part  per- 
formance to  entitle  him  to  a  specific  performance  of  the  agreement.  Brown  v. 
Jones,  46  Barb.,  400.  A.  and  B.,  both  of  whom  claimed  certain  land,  entered 
into  an  agreement  by  which  B.  was  to  purchase  the  land  at  the  public  sales.  A. 
oftered  B.  money  to  pay  for  his,  A.'s,  portion  of  it,  which  B.  declined  to  receive, 
saying  that  he  had  money  enough,  and  would  make  the  purchase  and  call  on  A. 
for  the  money,  when  he  wanted  it.  The  purchase  was  concluded,  and  A.  made 
valuable  improvements  on  his  portion,  with  the  knowledge  of  B.,  who  recog- 
niied  A.'s  right,  and  desired  to  purchase  his  portion.   A.  tendered  the  purchase 


384  STATUTE    OF    FRAUDS.  §  282. 

be  enforced,  the  vendor  will  be  compelled  to  refund  the 
purchase  money,  and  pay  for  the  improvements  of  the  ven- 
dee, deducting  therefrom  the  rents  and  profits.' 

§  282.  Property  i7itproved  by  labor. — Improvements  to 
constitute  part  performance,  or  to  entitle  the  vendee  to 
compensation,  need  not  necessarily  consist  of  erections  on 
the  land,  but  may  arise  from  skill  and  labor  bestowed  in 
cultivation.      It  appeared   that  the  plaintiff  and  J.  P.,  the 


money,  with  a  deed  for  B.  to  execute,  which  B.  refused.  In  a  suit  for  specific 
performance  by  A.,  it  was  held  that  he  was  entitled  to  a  decree  for  conveyance. 
McCoy  V.  Hughes,  i  Greene,  Iowa,  370.  Where  a  tenant  occupied  an  unfur- 
nished house,  made  improv^ements,  and  paid  rent  for  some  time,  under  a  parol 
agreement  to  execute  a  lease  for  ten  years,  the  tenant  to  complete  the  house  at 
his  own  expense,  the  court  decreed  a  specific  performance.  Farley  v.  Stokes, 
I  Pars.  Sel.  Cas.,  422.  A  son  living  with  his  father  who  had  a  lease  of  the  prem- 
ises, entered  into  a  parol  agreement  with  the  owner,  for  a  portion  of  the  land, 
built  a  house  thereon,  and  occupied  it  with  his  family,  but  erected  no  division 
fence  between  his  part  and  that  of  his  father.  Held,  sufficient  to  take  the  agree- 
ment out  of  the  statute  of  frauds.  Zimmerman  v.  Wengart,  31  Pa.  St.,  401. 
Where  a  purchaser  under  a  parol  contract  took  possession  of  land  worth  not  over 
twenty-five  dollars,  paid  ten  dollars  down,  and  made  improvements  worth  four 
hundred  dollars,  the  land  being  partly  given  in  consideration  of  the  erection  of  a 
blacksmith-shop,  it  was  held  that  there  was  a  sufficient  performance  to  take  the 
case  out  of  the  statute,  and  speciiic  performance  was  decreed.  Northrup 
v.  Boone,  66  111.,  368.  A  husband  and  wife  took  possession  of  land  under  a  parol 
contract  for  its  purchase,  the  price  to  be  paid  within  three  months,  and  made 
improvements  thereon  worth  more  than  the  land,  but  against  the  vendor's  objec- 
tion until  the  purchase  money  should  be  paid.  The  vendor  received  payments 
from  time  to  time  without  comment,  and  afterward  tendered  a  deed  demanding 
more  than  was  due  him.  Held,  that  the  purchasers  were  entitled  to  a  decree  for 
specific  performance.  Patter  v.  Jacobs,  in  Mass.,  32.  As  a  rule,  where  a  parol 
agreement  for  the  sale  of  land,  is  silent  as  to  the  possession,  the  land  vacant,  the 
entire  consideration  paid,  and  the  agreement  fully  performed  on  the  part  of  the 
vendee,  leaving  nothing  for  the  vendor  to  do  but  to  give  a  deed,  there  is  an  im- 
plied agreement  that  the  vendee  may  at  once  take  and  hold  possession.  W^here, 
in  such  a  case,  the  vendee  constructed  roads  to  and  upon  the  land,  built  a  shanty, 
made  some  clearing,  and  paid  the  taxes,  and  his  improvements  thus  made  were 
probably  equal  in  value  to  the  consideration  paid  tor  the  land,  and  the  outlay 
would  be  lost  to  him,  unless  the  defendant  were  compelled  to  perform  his  agree- 
ment, it  was  held  that  enough  had  been  done  by  him  to  bring  his  case  within  the 
equitable  rule  as  to  part  performance.     Miller  v.  Ball,  64  N.  Y.,  286. 

'  Lord  Pengall  v.  Ross,  2  Eq.  Cas.  Abr.,  46,  PI.  12  ;  Fox  v.  Loughby,  i  A.  K. 
Marsh,  3S8  ;  Parkhurst  v.  Van  Cortlandt,  i  Johns  Ch.,  273 ;  Dunn  v.  Moore,  3 
Ired.  Eq.,  364;  Harden  v.  Hays,  9  Pa.  St.,  151  ;  Baker  v.  Carson,  i  Dev.  &  Batt. 
Eq.,  381  ;  Albea  v.  Griffin,  2  lb.,  9  ;  Goodwin  v.  Lyon,  4  Porter,  297.  The  vendee 
has  a  lien  on  the  land  therefor,  as  against  the  vendor  and  creditors.  Rucker  v. 
Levick,  8  B.  Mdn.,  566.  But  he  is  not  entitled  to  retain  possession  until  he  is  in- 
demnified for  his  expenditures.  Harden  v.  Hays,  supra.  So,  where  improve- 
ments are  made  by  a  tenant  on  the  demised  premises,  with  the  knowledge  and 
acquiescence  of  his  landlord,  an  equity  does  not  arise  therefor  entitling  the  ten- 
ant to  remain  in  possession  while  such  improvements  are  fit  for  use.  West  v. 
Flanagan,  4  Md.,  36. 


§   283.  IMPROVEMENTS    UNDER    A    LICENSE.  385 

defendant's  intestate,  entered  into  a  verbal  arrangement  by 
which  the  said  J.  P.  agreed  to  purchase  a  certain  farm  for 
one  thousand  dollars.  The  plaintiff  was  to  be  put  into 
possession  of  the  farm,  manage,  cultivate,  and  improve  it, 
and  have  the  avails,  pay  the  taxes,  and  pay  to  J.  P.  the 
annual  interest  on  the  one  thousand  dollars  purchase 
money,  until  such  time  as  he  should  choose  to  pay  the 
principal,  when,  on  the  payment  thereof,  J.  P.  should  con- 
vey the  farm  to  him.  J.  P.  purchased  the  farm,  and  the 
plaintiff  performed  the  agreement  on  his  part  for  nearly 
twenty  years,  when,  on  his  offering  to  pay  J.  P.  the  inter- 
est, the  latter  said  he  would  take  no  money,  but  would 
give  the  plaintiff  a  deed.  But  afterward  he  declined  to 
convey  the  farm  to  the  plaintiff,  notwithstanding  the  plain- 
tiff offered  to  pay  him  the  purchase  money,  saying  that 
all  he  wanted  was  the  interest  while  he  lived,  and  that 
on  his  death  the  farm  would  belong  to  the  plaintiff.  The 
farm  was  greatly  enhanced  in  value  by  the  labor  and  means 
of  the  plaintiff.  The  judgment  of  the  court  below,  that 
the  defendants  convey  the  farm  to  the  plaintiff  on  payment  to 
them  of  the  purchase  price,  with  the  interest  thereon  remain- 
ing unpaid,  was  affirmed  with  costs.'  If  a  person  enters  into 
possession  of,  and  works,  land  under  a  parol  agreement  for 
a  written  lease,  it  is  such  a  part  performance  as  takes  the 
agreement  out  of  the  statute  of  frauds."  Where  a  person 
went  on  to  land  under  a  parol  agreement  for  its  use  for 
eight  years,  upon  condition  that  he  would  clear  up  and  im- 
prove it,  which  he  did,  at  a  cost  exceeding  the  yearly  rent, 
it  was  held  that  he  was  entitled  to  a  decree  for  specific  per- 
formance.' 

§  283.  Improvements  under  a  license.  —  Although  a 
parol  license  for  a  qualified  use  of  land  is  valid,  yet  a  per- 
manent right  to  hold  another's  land  for  a  particular  object, 

'  Patterson  v.  Copeland,  52  How.  Pr.,  460.      ^  McCarger  v.  Rood,  47  Cal.,  38. 

'Morrison  v.  Peay,  21  Ark.,  no.  A  parol  agreement  to  devise  land  \vill  not 
be  specifically  enforced,  although  the  party  has  expended  money  and  perlormed 
services  on  the  faith  of  such  agreement.     Harder  v.  Harder,  2  Sandf.  Ch  ,  19. 

25 


386  STATUTE    OF    FRAUDS.  §   284. 

and  to  enter  upon  it  at  all  times  without  his  consent,  is  an 
important  interest  which  must  in  general  be  in  writing.' 
"Were  a  contrary  rule  adopted,  it  is  easy  to  see  how,  with- 
out questioning  the  credibility  of  witnesses,  by  a  slight  mis- 
understanding of  the  language  of  the  ancestor,  permission 
to  make  a'  temporary  erection  might  be  converted  into  a 
license  to  occupy  indefinitely,  and  thus  create  an  estate 
scarcely  less  than  a  fee.'"  But  a  parol  license  may  become 
a  valid  and  binding  agreement,  where  the  enjoyment  of  the 
license  must  necessarily  be  preceded  by  the  expenditure  of 
money,  and  the  licensee  has  made  improvements  or  in- 
vested capital  in  consequence  of  it.'  In  such  case,  the  con- 
tract having  been  performed  on  one  part  by  permanent 
erections  of  considerable  value,  a  court  of  equity  will  de- 
cree an  assurance  of  the  title  stipulated  ;  and  possession  by 
the  party  under  the  license  will  be  notice  to  a  subsequent 
purchaser  or  incumbrancer,  of  whatever  title  the  one  in  pos- 
session may  have,  whether  legal  or  equitable.'  Thus,  a 
parol  license  to  divert  water  from  its  ancient  course  for  the 
use  of  a  saw-mill  w^as  held  irrevocable  after  an  expenditure 
of  money  and  labor  on  the  basis  of  it ;  the  principle  being 
that  the  revocation  would  be  a  fraud." 

§  284.  Improvements  by  donee. — A  parol  promise  to  give 
land  to  another,  accompanied  by  actual  delivery  of  posses- 
sion, will  be  specifically  enforced  where  the  promisee,  in- 
duced by  such  promise,  has  made  valuable  improvements 


'  Hewlins  v.  Shippam,  5  Barn.  &  Cress.,  221  ;  7  Dow.  &  Ry.,  783  ;  Cocker  v. 
Cowper,  I  C.  M.  &  R.,  418;  Williams  v.  Morris,  8  M.  &  W.,  488;  Wood  v. 
Leadbilter,  13  lb.,  838;  Fentiman  v.  Smith,  4  East.,  107  ;  Bryan  v.  Whistler,  2 
Man.  &  Ry.,  318  ;  Bird  v.  Higginson,  6  Adol.  &  Ell.,  824 ;  Ruffey  v.  Henderson, 
8  Eng.  L.  &  Eq.,  305  ;  Cook  v.  Stearns,  1 1  Mass  ,  533  ;  Bridges  v.  Purcell,  i 
Dev.  &  Batt.,  492  ;  Benedict  v.  Benedict,  5  Day,  464;  Mumtbrd  v.  Whitney,  15 
Wend.,  380;  Brown  v.  Woodworth,  5  Barb.,  550;  Stevens  v.  Stevens,  11  Mete, 
251.  Contra,  Wood  v.  Lake,  Sayer,  3;  Tayler  v.  Waters,  7  Taunt.,  374;  Cle- 
ment V.  Durgin,  5  Me.,  9 ;  Woodbury  v.  Parshley,  7  N.  H.,  237. 

'  Waterman  on  Trespass,  Vol.  2,  Sec.  785. 

*  Hall  V.  Chaffee,  13  Vt,  150  ;  McKellip  v.  Mcllhenny,  4  Watts,  317  ;  Lefevre 
V.  Lefevre,  4  Serg.  &  Rawle,  241  ;  Svvartz  v.  Swartz,  4  Pa.  St.,  353 ;  Sheffield  v. 
Collier,  3  Ga.,  82;  Wynn  v.  Garland,  19  Ark.,  23. 

*  Pope  V.  Henr)-,  24  Vt„  560.  *  Rerick  v.  Kern,  14  Serg.  &  Rawle,  '267. 


§   285.  IMPROVEMENTS    BY    CHILD.  387 

with  the  knowledge  of  the  promisor.'  If  parties  are  in  pos- 
session of  land  under  an  alleged  parol  agreement,  a  much 
weaker  case  will  constitute  a  good  defence,  than  would  be 
required  if  they  were  complainants  asking  the  active  inter- 
position of  the  court  in  their  favor/  But  to  sustain  a  parol 
gift  of  land,  as  against  the  heirs  of  the  donor,  there  must 
be  clearly  shown  an  executed  intent  to  make  the  gift,  pos- 
session taken,  and  improvements  made  on  the  faith  of  it.' 
Where  the  owner  of  a  small  piece  of  ground  verbally 
agrees  with  certain  of  his  neighbors  that  if  they  will  raise 
funds  to  build  a  school-house  on  the  premises  for  the  use 
of  the  neighborhood,  he  will  contribute  the  ground,  and 
they  raise  the  funds,  and  build  a  house  costing  more  than 
the  value  of  the  lot,  it  is  the  case  not  of  a  gift,  but  of  a 
purchase  for  a  valuable  consideration." 

§  285.  Improvements  by  child  2uidcr  gift  from  parent. — 
Where  a  son  goes  into  possession  of  his  father's  land,  makes 
improvements,  and  pays  the  taxes,  it  is  not  to  be  inferred 
therefrom,  in  the  absence  of  other  evidence,  that  the  father 
gave  the  son  the  land.  Neither  are  loose  declarations  of 
the  father  calling  the  land  his  son's  property,  without  ex- 
planation, sufficient  evidence  of  a  gift."  A  contract  between 
a  parent  and  child,  from  the  nature  of  the  relation,  requires 
to  be  proved  by  a  kind  of  evidence  very  different  from  that 
which  may  be  sufficient  between  strangers.  The  terms 
must  be  clearly  defined,  and  all  the  acts  necessary  to  its 
validity,  must  have  especial  reference  to  it,  and  to  nothing 
else.'     If,  however,   it  be  proved  that  large  expenditures 


'  Freeman  v.  Freeman,  39  N.  Y„  34, 

"  Haines  v.  Haines,  4  Md.  Ch.,  133  ;  S.  C,  6  Md.,  435. 

'  Jolinston  V.  Joiinston,  19  Iowa,  74.     See  ante,  §  271. 

*  Martin  v.  M'Cord,  5  WaUs,  493. 

'  Hugus  V.  W^alker,  12  Pa.  St.,  173 ;  Cox  v.  Cox,  26  lb.,  375. 

•  Poorman  v.  Kilgore,  26  Pa.  St.,  365  ;  Eckert  v.  Mace,  3  Penrose  &  Watts, 
364.  A  child,  like  any  other  purchaser,  must  prove  that  the  land  was  clearly 
designated,  and  that  open,  notorious,  and  exclusive  possession  was  taken  and 
maintained  under  and  in  pursuance  of  the  contract.  Shellhammer  v.  Aslibaugh, 
83  Pa.  St.,  24.  See  Sower  v.  Weaver,  84  lb.,  262;  King  v.  Thompson,  9  Pet,, 
204  ;  a7ite,  §§  40,  265. 


388  STATUTE    OF    FRAUDS.  §   285. 

have  been  made,  in  permanent  improvements  on  the  land, 
with  the  knowledge  of  the  father,  and  in  consideration  of 
his  promise  to  convey  the  land,  there  is  a  good  equitable 
consideration  which  will  be  protected  and  enforced.  In 
such  cases,  the  court  relies  not  so  much  on  the  contract  as 
on  the  acts  done  under  it  subsequently,  on  the  faith  that 
the  promise  will  be  kept  by  the  other  party.'  A.,  a  step- 
father of  B.,  promised  B.,  who  was  about  to  leave  home, 
and  commence  business  for  himself,  that  if  he  would  stay 
with  A.,  work  the  farm,  and  take  care  of  the  family,  he 
would  deed  him  half  of  his  farm.  B.  accordingly  remained, 
and  ever  after  during  the  life  of  A.  and  his  wife,  for  more 
than  thirty  years,  had  the  control  and  management  of  the 
farm,  paid  the  taxes,  built  a  house,  and  otherwise  improved 
the  property.  It  was  held  that  as  the  agreement  was  certain 
as  to  the  land  and  the  consideration,  and  not  founded  on  a 
vague  expectation  of  benefit,  but  upon  a  distinct  and  posi- 
tive promise,  and  there  had  been  a  substantial  performance 
on  the  part  of  B.,  he  was  entitled  to  have  it  specifically  en- 
forced.' 

'  Young  V.  Glendenning,  6  Watts,  509 ;  Lobdell  v.  Lobdell,  36  N.  Y.,  327  ; 
Moore  v.  Pierson,  6  Iowa,  279;  Bright  v.  Bright,  41  111.,  loi  ;  Hardesty  v.  Rich- 
ardson, 44  Md.,  617  ;  Galbraith  v,  Galbraith,  5  Kansas,  402  ;  Willis  v.  Mathews, 
46  Texas,  478. 

'^  Twiss  V.  George,  33  Mich.,  253.  Where  a  father,  nearly  twenty  years  before 
his  death,  made  a  p.arol  gift  of  lands  to  his  sons,  and  put  them  in  possession, 
which  they  continued  to  hold  during  his  life,  making  valuable  improvements,  and 
paying  the  taxes  which  were  assessed  in  their  respective  names,  it  was  held  that 
the  gift  was  valid.  Syler  v.  Eckhart,  i  Binney,  378.  In  another  case  a  father 
verbally  agreed  to  convey  to  his  son,  then  fifteen  years  old,  a  certain  tract  of 
land  if  the  son  would  remain  with  him  and  work  for  him  until  he  attained  full 
age.  The  son  continued  to  work  until  one  year  after  he  was  twenty-one,  when 
the  father  renewed  the  promise,  and  had  the  land  transferred  to  the  son  on  the 
tax  list.  The  son,  relying  on  his  father's  promise,  took  possession  of  the  land, 
and  made  improvements  on  it  worth  four  hundred  dollars.  The  father  died  with- 
out executing  a  conveyance,  and  the  son  filed  a  bill  for  specific  performance, 
which  was  decreed.  Atkinson  v.  Jackson,  8  Ind.,  31.  Where  the  defendant 
offered  to  prove  that  her  husband  worked  for  the  plaintiff,  his  father,  about  eight 
years  after  he  became  of  age,  at  the  plaintiff's  request ;  that,  in  consideration 
thereof,  and  of  love  and  affection,  the  plaintiff  gave  the  farm  by  parol  to  his  son, 
who  took  possession,  made  improvements,  and  paid  the  taxes,  with  the  approba- 
tion of  the  plaintiff;  that  the  plaintiff  always  treated  his  son  as  the  owner,  and, 
on  his  death-bed,  informed  the  son  and  his  wife  that  he  would  never  disturb 
them  ;  it  was  held  that  the  evidence  entitled  the  defendant  not  only  to  hold  the 
farm,  but  to  receive  such  a  conveyance  from  the  plaintiff  as  would  vest  in  her 


§§   286,   287.       COMPENSATION    FOR    IMPROVEMENTS.  389 

§  286.  Distinction  between  gift  and  promise  of  a  gift. — 
Where  a  father  having  promised  to  give  by  will  certain  land 
to  his  son,  the  latter  makes  improvements  upon  it,  but  not 
in  execution  of  the  agreement,  or  at  the  father's  request, 
the  case  is  not  taken  out  of  the  statute.  A  son,  like  a 
stranger,  must  be  a  purchaser  for  value  given,  or  prejudice 
received,  in  order  to  take  even  a  present  agreement  to  con- 
vey, out  of  the  statute  ;  and  he  must  equally  be  a  purchaser, 
in  case  of  a  promise  to  devise  him  an  estate — not  by  an 
officious  expenditure  in  improvements — but  by  something 
done  in  execution  of  the  contract,  or  at  the  promisor's  re- 
quest. The  reason  is,  that  a  positive  gift  is  an  encourage- 
ment to  treat  the  property  as  the  donee's  own,  while  a 
promise  j;o  give  is  not.' 

§  287.  Coinpensatio7t  for  improvements  where  gift  in- 
suffcient. — If  an  alleged  gift  of  land  be  incapable  of  being 
enforced,  the  donor,  before  he  can  get  possession,  will  be 


and  her  surviving  child,  title  to  the  farm  according-  to  their  respective  rights, 
McCray  v.  McCray,  30  Barb..  633.  A  father  verbally  agreed  to  convey  to  his 
son  his  farm,  if  the  latter  would  remain  on  it,  and  maintain  him,  the  father,  dur- 
ing his  hfe.  The  son  fulfilled  the  conditions  for  fifteen  years,  when  the  father, 
becoming  displeased  with  him,  conveyed  the  farm  to  his  two  other  sons.  Held, 
that  the  part  performance  took  the  agreement  out  of  the  statute  of  frauds. 
Davison  v.  Davison,  13  N.  J.  Eq...  246.  Where  A.  agreed,  by  parol,  that  if  B., 
his  son,  would  go  and  live  on  a  certain  portion  of  A.'s  land,  twenty-five  acres, 
and  clear  and  improve  it,  he  would  give  B.  a  deed  in  fee  of  the  twenty-five  acres, 
which  proposition  B.  accepted,  went  into  possession,  cleared  a  large  portion  of 
the  tract,  built  on,  and  otherwise  improved  the  same,  and  continued  to  reside  on 
it  for  sixteen  years,  when  he  filed  a  bill  for  a  specific  performance  of  the  agree- 
ment, it  was  held  that  he  was  entitled  to  a  decree.  France  v.  France,  8  N.  J. 
Eq.,  650.  A  father,  having  a  life  estate  in  certain  land,  but  supposing  that  he 
was  the  owner  of  it  in  fee,  devised  it  at  his  death  to  his  son.  The  mother,  wish- 
ing to  carry  out  the  mistaken  devise  of  her  husband,  entered  into  a  parol  agree- 
ment with  her  son  to  convey  the  land  to  him,  provided  he  would  relinquish  all 
interest  in  his  father's  personal  estate.  The  son,  having  executed  a  receipt  in 
full  to  his  mother,  as  his  guardian,  for  his  share  of  said  estate,  in  pursuance  of 
the  agreement,  taken  possession  of  the  land,  and  made  improvements  thereon, 
it  was  held  that  he  was  entitled  to  a  decree  for  specific  performance.  Shepherd 
V.  Bevin,  9  Gill,  32.  Where  a  father,  having  prevailed  upon  his  daughter  to 
move  with  her  husband  and  children  to  a  place  near  the  father's  residence,  by  a 
verbal  agreement  to  purchase  and  convey  to  her  certain  land,  bought  the  land 
and  put  them  in  possession  of  it,  and  they  made  valuable  improvements  thereon, 
and  the  father  executed  a  deed  of  the  land  to  his  daughter,  but  did  not  deliver 
the  deed  to  her  during  her  life,  it  was  held,  in  a  suit  for  specific  performance 
brought  by  the  husband  and  children,  that  they  were  entitled  to  the  relief  asked. 
Law  V.  Henry,  39  Ind.,  414.  But  see  Forward  v.  Armistead,  12  Ala.,  124, 
»  McCiure  v.  McClure,  i  Pa.  St.,  374. 


390  STATUTE    OF    FRAUDS.  §   288. 

required  to  pay  for  the  improvements.'  Although  in  such 
case,  the  owner  could  not  set  up  an  independent  claim  to 
rents  and  profits,  yet,  when  the  occupier  comes  to  be  com- 
pensated for  his  improvements,  the  value  of  the  rents  and 
profits  enter  as  a  necessary  element  into  the  question  of 
compensation.'  Where  some  improvements  were  made  by 
the  donee,  not  such  as  an  ordinary  tenant  would  be  likely 
to  erect,  and  the  defendants  in  their  answer,  while  denying 
the  agreement,  averred  their  willingness  to  pay  for  such 
improvements,  a  decree  was  advised  that  it  be  referred  to 
a  master  to  ascertain  and  report  an  allowance.' 

§  288.  Acts  of  part  perfoi^mance  connected  with  mar- 
riage.— Since,  under  the  statute  of  frauds,  agreements  in 
consideration  of  marriage,  to  be  binding,  must  be  in  writ- 
ing, it  follows,  that  marriage  does  not  in  itself  constitute 
such  an  act  of  part  performance  as  will  render  a  parol  con- 
tract in  relation  to  it  valid.'  Previous  to  a  marriage,  it  was 
agreed  by  parol  that  there  should  be  a  settlement  of  part 
of  the  wife's  property,  and  that  the  husband  should  take 
the  rest,  which  he  did  ;  but  no  settlement  was  made,  and 
the  wife  afterward  filed  a  bill  to  obtain  a  declaration  of 
rights  to  certain  property  coming  to  her,  and  the  husband 
in  his  answer  admitted  these  facts,  and  a  deed  was  then 
prepared  purporting  to  be  a  settlement  on  the  wife  pursu- 
ant to  the  agreement,  which  was  signed,  but  not  acknowl- 

'  Evans  v.  Battle,  19  Ala.,  398.  ^  Ridley  v.  McNairy,  2  Humph.,  174. 

'  Ackerman  v.  Ackerman,  24  N.  J.  Eq.,  315. 

■*  Montacute  v.  Maxwell,  i  P.  Wms.,  618;  Taylor  v.  Beech,  i  Ves.  Sen.,  297; 
Dundass  v.  Dutens,  i  Ves.  Jun.,  199 ;  Redding  v.  Wilkes,  3  Bro.  C.  C,  400;  and 
see  remarks  of  Sir  J.  Romilly  in  Warden  v.  Jones,  23  Beav.,  487.  "  The  sub- 
sequent marriag'e  is  not  deemed  a  part  performance  taking  the  case  out  of  the 
statute,  contrary  to  the  rule  which  prevails  in  other  cases  of  contract.  In  this 
respect,  it  is  always  treated  as  a  peculiar  case  standing  on  its  own  ground." 
Story's  Eq.  Juris.,  Sec.  768.  It  was  held,  in  some  of  the  earlier  English  cases, 
that  the  necessity  of  written  evidence  of  a  promise  in  consideration  of  marriage, 
embraced  mutual  [)romises  to  marr)'.  Philpot  v.  Walcot,  Skinner,  24  ;  3  Le- 
vinz,  65  ;  Freeman,  541.  But  this  idea  was  afterward  abandoned.  In  some  of 
the  States,  the  statute  expressly  excepts  mutual  promises  to  marry.  Alabama, 
Rev.  Code  of  1867,  Sec.  1S62;  California,  Code,  Sec.  1624;  Kentucky,  Rev. 
Sts..  Ch.  22,  Sec.  I  ;  Minnesota,  Sts.  1873,  Vol.  i,  p.  692,  Sec.  6,  Sub.  3 ;  Ne- 
braska, Sts.  1873,  Ch.  25,  Sec.  6 ;  New  York,  Rev.  Sts..  6th  Ed.,  Vol.  3,  p.  343  ; 
Wisconsin,  Sts.  1871,  Ch.  107,  Sec.  2. 


§   288.  ACTS    OF    PART    PERFORMANCE.  39 1 

edged,  by  the  wife.  A  suit  having  subsequently  been 
brought  by  a  person  claiming  under  the  settlement  against 
the  heir,  it  was  held  that  the  marriage  was  not  a  part  per- 
formance, and  that  therefore  the  parol  agreement  was  void, 
and  all  the  subsequent  proceedings  null.'  Parties  entered 
into  a  parol  agreement,  in  contemplation  of  marriage,  that 
the  wife  should  retain  all  her  personal  property,  and  her 
estate  of  dower  in  the  lands  of  her  former  husband,  and 
that  in  case  she  survived  the  person  she  was  about  to  marry, 
she  would  relinquish  all  claim  to  his  estate,  real  and  per- 
sonal. The  husband  having  carried  out  the  agreement  on 
his  part  during  his  life-time,  it  was  held  that  there  was  not 
such  a  part  performance  as  took  it  out  of  the  statute  of 
frauds.''  Cases  often  occur,  however,  in. which  acts  con- 
nected with  the  marriage,  amount  to  part  performance  in- 
dependently of  it,  the  marriage  not  being  the  sole  act  relied 
on  ;  as  where  the  husband  makes  a  settlement  in  pursuance 
of  a  parol  agreement  entered  into  by  him  with  his  wife's 
father  previous  to  the  marriage.'  A  father,  before  the  mar- 
riage of  his  daughter,  agreed  by  parol  to  give  certain  prop- 
erty to  the  married  couple.  The  marriage  having  taken 
place,  and  absolute  possession  delivered  to  the  son-in-law, 
he  expended  money  on  it,  and  it  was  held  that  there  was 
a  part  performance  of  the  alleged  agreement.*     Where  a 

'  Lassence  v.  Tierney,  i  M'N.  &  G.,  551. 

'  Finch  V.  Finch,  10  Ohio  Sts.,  501.  In  a  bill  for  specific  performance,  the 
complainant  alleged  that  her  father,  long  before  her  marriage,  promised  by 
parol  to  give  her  certain  lands  in  case  she  married  with  his  consent,  and  that,' 
after  her  marriage,  he  put  her  in  possession  thereof,  and  she  and  her  husband 
made  certain  improvements.  The  father  having  denied,  in  his  answer,  that  he 
consented  to  the  marriage,  or  gave  her  possession  in  pursuance  of  any  promise, 
it  was  held  that  a  decree  for  specific  performance  should  be  refused.  Worley 
V.  Walling,  i  Har.  &  J.,  298.  But  it  was  held  in  the  same  State,  that  the  de- 
livery of  real  estate  by  a  father  to  his  daughter,  in  pursuance  of  an  agreement, 
made  by  him  with  her  in  contemplation  of  her  marriage,  that  he  would  give  her 
the  property  as  an  advancement  and  marriage  portion,  and  the  fulfilment  of  the 
condition  on  her  part  by  the  marriage,  took  the  agreement  out  of  the  statute  of 
frauds ;  the  marriage  being  deemed  equivalent  to  the  payment  of  the  purchase 
money  in  a  pecuniary  contract.     Dugan  v.  Gitting,  3  Gill,  138. 

2  Hammersley  v.  De  Biel,  12  CI.  &  Fin.,  45,  64. 

*  Surcome  v.  Pinniger,  3  De  G.  M.  &  G.,  571.     And  see  Floyd  v.  Buckland,  i 
Freem.,  268. 


392  STATUTE    OF    FRAUDS.  §  289 

parol  promise  was  made  by  a  father,  to  convey  a  certain  lot 
to  a  lady  who  was  about  to  marry  his  son,  and  she  promised 
to  furnish  the  money  and  build  thereon  a  house,  and  under 
such  arrangement  they  were  married,  and  she  having  been 
given  possession  of  the  lot  and  built  as  agreed,  it  was  held 
that  a  decree  for  specific  performance  of  the  contract  to 
convey  could  be  enforced.'  But  it  has  been  held  that  the 
execution  of  a  settlement  is  not  an  act  of  part  perform- 
ance, where  the  previous  parol  agreement  was  only  between 
the  parties  subsequently  married,  and  not  between  the  in- 
tended husband  and  a  third  person/  Where,  however,  a 
man  made  an  a7ite-nuptial  agreement  by  parol  with  his  in- 
tended wife,  that,  if  he  should  die  first,  he  would  devise  to 
her  and  her  children  all  the  property  he  should  receive 
from  her  by  their  marriage,  and  he  caused  a  will  to  be 
drawn  in  accordance  with  such  agreement,  and  kept  it  by 
him,  and  afterward  changed  the  disposition  of  his  property 
by  codicil,  it  was  held  such  a  part  performance  of  the 
agreement  as  took  the  case  out  of  the  statute  of  frauds.' 
Cohabitation  may  constitute  part  performance.  Thus,  in 
a  deed  of  separation,  the  husband  having  covenanted  with 
a  trustee  for  the  payment  of  an  annuity  to  his  wife,  she 
returned  to  her  husband  a  short  time  before  his  death,  upon 
a  promise  made  by  him  to  her  and  her  trustee,  that,  if  she 
would  do  so,  he  would  continue  to  pay  the  annuity,  and 
would  charge  it  on  his  real  estate.  He  died  without  ful- 
filling his  promise,  and  it  was  held,  on  the  ground  of  part 
performance,  that  the  parol  agreement  might  be  enforced 
against  the  devisees  of  the  husband.' 

§  289.  Acts  which  may  or  may  noi  constitute  part  per- 
formance. — As  acts  done  previous  to  the  agreement  can- 

'  Neale  v.  Neale,  9  Wall,  i. 

"Warden  v.  Jones,  23  Beav.,  487.  Contra,  Gough  v.  Crane,  3  Md.  Ch.,  119 ; 
4  Md.,  311. 

3  Lowe  V.  Bryant,  30  Ga.,  528.  A  parol  agreement  concerning  lands  for  the 
settlement  of  a  family  controversy,  executed  on  one  side,  may  be  specifically 
enforced  on  the  other.     Watkins  v.  Watkins,  24  Ga.,  402. 

*  Webster  v.  Webster,  27  L.  J.  Ch.,  115  ;  S.  C,  4  De  G.  M.  &  G.,  437. 


§  289.   WITH  REFERENCE  TO  PART  PERFORMANCE.      2)93 

not  be  regarded  as  done  in  pursuance  of  it,  they  do  not 
constitute  part  performance."  The  same  is  true  of  acts 
subsequent  to  the  agreement,  though  in  pursuance  of  it,  if 
not  strictly  in  performance,  but  only  preparatory  thereto. 
Acts  of  this  kind  may  be,  and  usually  are,  the  mere  acts  of 
the  party  doing  them,  the  other  party  not  necessarily  being 
cognizant  of  them,  and  therefore  not  so  bound  by  them  as 
to  make  it  fraudulent  in  him  afterward  to  refuse  to  carry 
out  the  agreement/  Where  it  was  a  condition  of  the 
agreement  that  a  party  should  obtain  a  release  from  a  third 
person,  which  was  done  by  the  payment  of  a  valuable  con- 
sideration, it  was  held  to  be  only  a  preparatory  step,  and 
not  a  part  performance  of  the  contract.'  In  another  case 
A.  entered  into  a  parol  agreement  with  B.  for  the  purchase 
of  land.  B.  delivered  a  rent  roll  to  A.,  which  showed  by 
its  heading  that  an  agreement  had  been  made  between 
them  for  the  sale  of  the  land  at  twenty-one  years'  purchase ; 
and  an  abstract  of  title  and  deeds  were  also  delivered  to  A., 
for  the  purpose  of  carrying  out  the  sale.  B.  notified  his 
creditors  by  letter  that  he  had  agreed  to  sell  the  land  to  A., 
took  A.  over  the  land,  introduced  the  tenants  to  him  as 
landlord,  and  declined  to  renew  leases  and  do  other  acts  as 
owner,  referring  the  tenants  to  A.  B.  set  up  the  agree- 
ment against  an  elegit,  and  obtained  a  verdict  finding  that 
he  was  not  seized  of  the  land.  Nevertheless,  a  plea  of  the 
statute  of  frauds  was  sustained."  Where,  however,  the 
agreement  embraces  acts  between  A.  and  B.,  and  B.  and 
C,  and  A.  may  be  presumed  to  have  an  interest  in  respect 
to  the  acts  between  B.  and  C,  part  performance  of  this  por- 
tion of  the  agreement  will  make  it  binding  on  A.  The 
following  case  is  in  point :  A  lessor  agreed  by  parol  with  a 
colliery  company,  his  lessee,  consisting  of  four  members,  of 

»  Parker  v.  Smith,  i  Coll.  C.  C,  608,  623. 

"Fry  on  Specif.  Perform.,  186.  See  Redding  v.  Wilkes,  3  Bro.  C.  C,  400; 
Clerk  V.  Wright,  i  Atk.,  12;  Hawkins  v.  Holmes,  1  P.  Wms.,  770  ;  Pembroke 
V.  Thorpe,  3  Swanst.,  437,  «. 

^  O'Reilly  v.  Thompson,  2  Cox,  271.     *  Whaley  v.  Bagnal,  i  Bro.  P.  C,  345. 


394  STATUTE    OF    FRAUDS.  §   29O. 

whom  two  were  his  sons,  that  one  of  his  sons  and  one  of 
the  other  members  of  the  company  should  withdraw  there- 
from, and  that  thereupon  he  would  take  into  consideration 
the  reduction  of  the  rent,  and  refer  the  matter  to  a  com- 
petent person,  whose  report,  if  it  seemed  right,  he  would 
adopt  and  grant  a  new  lease.  The  partnership  was  dis- 
solved as  agreed,  and  the  two  continuing  partners  released 
the  others.  It  was  held  that  as  these  acts  could  only  be 
referred  to  the  agreement,  they  took  the  case  out  of  the 
statute  of  frauds,  and  specific  performance  of  the  agree- 
ment to  grant  the  lease  was  decreed  against  the  lessor's  as- 
signees in  bankruptcy.* 

§  290.  Time  of  perfonniitg  agreement. — With  respect 
to  the  time  of  performance,  it  will  be  observed  that  the 
English  statute  makes  it  essential  to  the  maintenance  of  an 
action,  on  any  verbal  agreement  in  relation  to  certain  specified 
matters,  that  it  is  to  be  performed  within  the  space  of  one 
year  from  the  making  of  it ;  and  the  statutes  of  several  of  the 
States  contain  a  similar  provision ;  while  in  New  York  and 
some  other  States  any  such  agreement,  except  contracts  for 
leasing  for  a  not  longer  period  than  one  year,  is  declared  to 
be  void.  Where  the  agreement  is  to  be  performed  upon  a 
contingency,  and  it  does  not  appear  from  the  agreement 
that  it  is  to  be  performed  after  the  year,  a  writing  is  un- 
necessary, for  the  reason  that  the  contingency  may  happen 
within  the  year.'  But  if  it  is  not  the  understanding  and 
intention  of  the  parties  that  the  contract  shall  be  performed 
within  a  year,  the  fact  that  it  is  possible  to  perform  within 
that  time  will  not  take  it  out  of  the  statute."    So,  an  agree- 

'  Parker  v.  Smith,  supra. 

"^  Peter  v.  Compton,  Skinner,  353  ;  Fenton  v.  Emblers,  3  Burr,  1278  ;  Wells  v. 
Horton,  4  Bing-.,  40;  Gilbert  v.  Sykes,  16  East.,  150  ;  King  v.  Hanna,  9  B.  Mon., 
369;  Izard  V.  Middleton,  i  Dessaus  Ch.,  116;  Thompson  v.  Gordon,  3  Strobh., 
196  ;  Peters  v.  Inhabs.  of  Westborough,  19  Pick.,  365  ;  Blake  v.  Cole,  22  lb.,  97  ; 
Howard  v.  Birgen,  4  Dana.  137;  Ellicott  v.  Turner,  4  Md.,  476 ;  McLees  v. 
Hale,  10  Wend.,  426;  Clark  v.  Pendleton,  20  Conn.,  495;  Artcher  v.  Zeh,  5 
Hill,  200;  Roberts  v.  Rockbottom,  7  Mete,  46;  Lyon  v.  King,  11  lb.,  411  ; 
Doyle  V.  Dixon,  97  Mass.,  209.  See  Ouackenbush  v.  Ehle,  5  Barb.,  469 ;  Tol- 
ley  V.  Greene,  2  Sandf.  Ch.,  91. 

'Boydell  v.  Drummond,  11  East.,  142  ;  Herrin  v.  Butters,  20  Me.,  119.  Con- 
tra, Ellicott  V.  Turner,  supra. 


§  290.       TIME  OF  PERFORMING  AGREEMENT.         395 

ment  which  cannot  be  performed  according  to  its  terms 
within  a  year,  is  within  the  statute,  even  if  the  act  or  prom- 
ise which  is  the  consideration  for  it  may  be  performed 
within  the  year,  or  has  been  performed.'  Where,  there- 
fore, the  defendant,  at  the  time  the  plaintiff  gave  him 
possession  for  the  purpose  of  foreclosure  of  the  mortgage 
which  she  had  given  him  on  the  land,  verbally  promised 
that  if  he  should  "sell  the  place"  he  would  pay  her  what- 
ever he  should  receive  for  it  beyond  the  amount  due  on 
his  mortgage,  and  the  foreclosure  would  not  be  complete 
so  that  he  could  sell  the  whole  estate  without  her  consent 
until  the  expiration  of  three  years,  it  was  held  that  as  the 
agreement,  according  to  a  reasonable  construction  of  it, 
could  not  be  performed  within  a  year,  it  was  within  the 
statute  of  frauds." 

'  Lapham  v.  Whipple,  8  Mete,  59 ;    Marcy  v.  Marcy,  9  Allen,  8 ;  Pierce  v. 
Paine,  28  Vt.,  34. 

^  Fear^-  v.  Sterling,  99  Mass.,  461.  It  has  been  held  that  if  the  contract  can 
be  fully  performed  on  one  side  within  a  year  from  the  time  of  making-  it,  it  is 
not  within  the  statute.  Donnellan  v.  Read,  3  Barn.  &  Adol ,  899 ;  Cherry  v. 
Heming,  4  W.  H.  &  G.,  631  ;  Holbrook  v.  Armstrong,  10  Me.,  31  ;  Bates  v. 
Moore,  2  Bailey,  614;  Gully  v.  Grubs,  i  J.  J.  Marsh,  387;  Blanton  v.  Knox,  3 
Mo.,  241  ;  Rake  v.  Pope,  7  Ala.,  161  ;  Johnson  v.  Watson,  i  Ga.,  348;  Hardesty 
V.  Jones,  10  Gill  &  Johns,  404;  Suggett  v.  Cason,  26  Mo.,  221  ;  Haugh  v. 
Blythe,  20  Ind.,  24.  But  it  is  difficult  to  understand  how  the  foregoing  view  can 
be  reconciled  with  the  express  language  of  the  statute,  which  requires  that  the 
agreement  shall  be  such  an  one  as  is  capable  of  being  performed  within  a  year, 
which  is  not  accomplished  by  its  mere  fulfilment  on  one  side.  The  correctness 
of  the  doctrine  has  accordingly  been  denied.  Sweet  v.  Lee,  3  Man.  &  Gr.,  452 ; 
4  Scott,  N.  R.,  17  ;  Bardett  v.  W^heeler,  44  Barb.,  162;  Emery  v.  Smith,  46  N. 
H.,  151.  In  Broadwell  v.  Getman,  2  Denio,  87,  Beardsley,  J.,  said  :  "  Although 
the  terms  of  the  agreement  may  require  full  performance  on  one  side  within  a 
year,  I  do  not  see  how  this  can  exclude  it  from  the  statute,  the  other  side  being 
incapable  of  execution  until  after  the  year  has  elapsed.  The  agreement  is  en- 
tire, and  if  it  cannot  be  executed  fully  on  both  sides  within  the  year,  I  think  it  is 
void.  What  difference  does  it  make  that  one  party  can,  while  the  other  cannot, 
complete  the  contract  within  a  year?  Such  an  agreement  is  not  in  terms  ex- 
cepted from  the  statute,  and  the  reason  for  the  enactment  applies  to  it  with  full 
force."  The  point  commented  on  did  not,  however,  arise  in  the  case,  as  the 
agreement  was  not  to  be  performed  by  either  party  within  the  year.  In  Tal- 
madge  v.  Rensselaer  &  Saratoga  R.R.  Co.,  13  Barb.,  493,  Willard,  J.,  questions 
the  correctness  of  the  view  taken  in  Broadwell  v.  Getman,  supra,  and  seems  to 
favor  the  opposite  doctrine.  But  he  placed  his  judgment  upon  other  grounds. 
"  It  seems  the  settled  rule,  outside  the  State  of  New  York,  that  if  the  contract  is 
completely  executed  on  one  side  at  the  time  of  making  it,  and  if  all  that  remains 
to  be  done  on  the  other  side  is  the  non-payment  of  money,  then  the  statute 
shall  not  apply  merely  on  the  ground  that  the  money  was  not  to  be  paid  within 
one  year."  "The  fact  that  the  money  was  to  be  paid  to  an  incumbrancer,  in- 
stead of  to  the  plaintiff  directly,  would  not  take  the  case  out  of  the  principle  of 


39^  STATUTE    OF    FRAUDS.  §   29 1. 

§  291.  Proof  of  agreement. — With  reference  to  the  proof 
required  to  establish  a  parol  agreement,  where  specific  per- 
formance is  sought  on  the  ground  of  part  performance,  it 
is  scarcely  necessary  to  say  that  the  evidence  must  be  clear 
and  definite,  and  that  if  there  is  any  such  conflict  of  evi- 
dence as  makes  it  uncertain  what  the  material  terms  of  the 
agreement  were,  the  court  will  refuse  to  interfere/  Ac- 
cordingly, where  the  agreement  was  attempted  to  be  shown 
by  a  single  witness,  and  his  testimony  differed  from  an  entry 
of  the  terms  in  a  pocket-book,  the  witness  swearing  that  the 
consideration  was  one  thousand  guineas,  exclusive  of  tim- 
ber, while  the  entry  contained  no  allusion  to  the  timber,  the 
suit  was  dismissed.'  But  where  the  case  presented  three 
different  agreements  :  one  set  out  by  the  plaintiff,  another 
proved  by  him,  and  a  third  admitted  in  the  answer,  specific 
performance  of  the  last-named  agreement  was  decreed  ; 
though  Lord  Rosslyn  expressed  doubts  as  to  the  propriety 
of  the  decision,  remarking  that  the  bill  ought  in  strictness 
to  have  been  dismissed."  Evidence  is  admissible  in  behalf 
of  the  plaintiff,  notwithstanding  it  tends  to  establish  a  con- 
tract different  from  the  one  alleged  in  the  bill,  where  the 
variance  is  favorable  to  the  defendant,  or,  at  least,  will  do 
him  no  injury  ;  as  where  the  difference  consists  of  an  ad- 
mission by  the  plaintiff  of  something  against  himself,  or  the 
leaving  out  of  something  in  his  favor,  or  where  the  vari- 
ance is  not  material  from  its  expressing  something  that  is 
implied,    or   has  already   been   performed."     Accordingly, 

the  rule."  Curtis  v.  Sage,  35  111.,  22.  In  Souch  v.  Strawbridge,  2  C.  B.,  808,  it 
was  said,  per  Tindall,  Ch.  J.,  that  to  entitle  the  party  to  recover  on  his  part  per- 
formance within  the  year,  when  the  other  party  was  not  bound  to  perform  within 
the  year,  it  must  appear  that  the  performance  on  the  part  of  the  plaintiff  was 
accepted  by  the  defendant,  or  that  it  went  to  benefit  him. 

'  Lindsay  v.  Lynch,  2  Sch.  &  Lef,  i  ;  Evans  v.  Lee,  12  Nevada,  393. 

^  Reynolds  v.  Waring,  You.,  346. 

^  Mortimer  v.  Orchard,  2  Ves.  Jun.,  243.  See  East  India  Co.  v.  Nuthumba- 
doo  Veerasawmy  Moodelly,  7  Moo.  P.  C.,  482,  497.  "  The  inclination  of  Lord 
Cottenham's  mind  seems  to  have  been  to  struggle  with  apparently  conflicting 
evidence,  rather  than  to  dismiss  the  bill  when  there  had  been  part  performance." 
Fry  on  Specif.  Perform.,  188,  referring  to  Mundy  v.  Jolliffe,  5  My.  &  Cr.,  167. 

*  Clifford  V.  Turrell,  i  Y.  &  C.  C.  C,  138. 


§  292.  AGREEMENT  HOW  PLEADED.  397 

where  the  plaintiff,  a  tenant,  alieged  that  he  was  to  pay- 
taxes  and  make  necessary  repairs,  and  the  contract  proved, 
contained  no  such  stipulation,  it  was  held  that  the  variation 
was  not  a  ground  for  dismissing  the  bill.'  And  the  same 
was  held,  where  the  agreement  set  out  by  the  plaintiff  was 
to  drain  the  lands  generally,  and  to  put  certain  arable  land 
into  pasture,  and  the  only  term  proved  was  to  drain  where 
necessary."  So,  specific  performance  may  be  decreed  of  a 
parol  agreement  for  the  sale  of  land,  as  between  the  parties 
to-  the  agreement,  where  an  agreement,  though  differing  in 
some  respects  from  that  charged  in  the  bill,  is  admitted,  and 
the  .statute  not  relied  on  as  a  bar  to  the  relief.' 

§  292.  Agreement  how  pleaded. — In  pleading  a  contract, 
it  is  sufficient  to  aver  that  there  was  a  written  agreement, 
without  alleging  that  it  was  signed,  that  being  implied." 
Accordingly,  where  an  affidavit  filed  by  the  defendant  con- 
tained the  terms  of  the  agreement,  his  signature  though  not 
alleged  by  the  plaintiff  was  presumed  by  the  court,  as  an 
affidavit  must  be  signed  as  well  as  sworn  to.'  But  it  has 
been  held  that  unless  the  bill  allege  that  the  agreement  is 
in  writing,  it  will  be  open  to  demurrer.^  The  allegation  that 
the  agreement  was  in  writing,  need  not,  however,  neces- 
sarily be  proved.  The  fact  of  the  existence  of  an  agreement 
so  alleged  will  be  sufficiently  established  by  an  admission  in 
the  answer  of  a  parol  agreement.'     If  the  complainant,  in 

'  Gregory  v.  Mighell,  18  Ves.,  328. 

"^  Mundy  v.  Jolliffe,  supra. 

'  Baker' V.  Hollobaugh,  15  Ark.,  322  ;  Woods  v.  Dille,  11  Ohio,  455.  And  see 
Houser  v.  Lament,  55  Pa.  St.,  311. 

*  Rist  V.  Hobson,  i  Sim.  &  Stu.,  543.  ^  Barkvvorth  v.  Young,  4  Drew,  i. 

'  lb.;  Whitchurch  v.  Bevis,  2  Bro.  C.  C,  559. 

!  Spurrier  V.  Fitzgerald,  6  Ves.,  555.  Such  an  admission  will  bind  the  heir  of  the 
defendant,  in  case  of  the  latter's  death,  upon  a  bill  of  revivor  filed  against  the 
heir.  Atty.  Genl.  v.  Day,  i  Ves.  Sen.,  218,  221.  Formerly,  when  a  vendor  died, 
and  a  suit  was  brought  by  his  personal  representative  against  the  purchaser  and 
the  heir  of  the  vendor,  the  admission  by  the  purchaser  was  held  to  take  the 
agreement  out  of  the  statute,  not  only  against  the  purchaser,  but  also  against 
the  vendor's  heir.  Lacon  v.  Mertins,  3  Atk.,  i  ;  Potter  v.  Potter,  i  Ves.  Sen., 
437.  But  that  is  no  longer  considered  to  be  law.  Now,  to  give  the  real  or  per- 
sonal representative  the  right  to  the  specific  performance  of  a  contract  to  the 
prejudice  of  thf  other,  there  must  have  been,  at  the  death  of  the  contractor,  an 


398  STATUTE    OF    FRAUDS.  §   292. 

his  bill,  states  the  making  of  a  contract,  without  alleging 
that  it  was  by  parol,  the  court  will  presume  that  it  was  in 
writing  and  duly  executed  when  the  nature  of  the  agree- 
ment is  such  that  it  could  not  be  valid  unless  it  were  in 
writing.  If  the  agreement  be  verbal,  the  plaintiff  must  set 
out  the  facts  and  circumstances  which,  when  proved,  will 
establish  his  claim  to  the  relief  prayed.'  Where  the  agree- 
ment is  denied  by  the  defendant  in  his  answer,  the  com- 
plainant must  prove  such  an  agreement  as  will  be  valid  with- 
in the  statute  of  frauds,  or  show  such  a  part  performance, 
or  other  equitable  circumstances,  as  will  take  the  agreement 
out  of  the  statute,  although  nothing  be  said  in  the  answer 
on  the  subject."  But  if  the  making  of  the  agreement  is  ad- 
mitted by  the  answer,  the  defendant,  in  such  answer,  must 
insist  that  it  was  not  in  writing,  and  therefore  not  binding 
on  him.'  And  so,  if  equitable  circumstances  are  alleged  in 
the  bill  to  take  the  agreement  out  of  the  statute,  they  must 
be  controverted  by  the  defendant.  Formerly,  specific  per- 
formance was  decreed  when  the  parol  agreement  was  con- 
fessed in  the  answer,  notwithstanding  the  statute  of  frauds 
was  insisted  on  as  a  defence.*  But  it  is  now  well  settled,  that 
in  such  case,  the  defendant  is  entitled  to  claim  the  protection 

agreement  legally  binding  him,  and  which  the  court  would  have  enforced  against 
him.  Buckmaster  v.  Harrop,  7  Ves.,  341  ;  S.  C,  13  lb.,  456.  Consequently, 
although  a  personal  representative  may  be  willing  to  carry  out  the  contract,  yet 
the  parties  interested  are  entitled  to  every  objection  which  the  deceased  might 
himself  have  made  if  he  were  living.  Ibid. 
'  Small  V.  Owings,  i  Md.  Ch.,  363, 

*  Ontario  Bank  v.  Root,  3  Paige  Ch.,  478 ;  Cozine  v.  Graham,  2  lb.,  177,  181. 
'  Gunter  v.  Halsey,  Ambl.,  586  ;  Limondson  v.  Sweed,  Gilb.,  35  ;  Rondeau  v. 

Wyatt,  2  H.  Bl  ,  68  ;  Talbot  v.  Bowen,  i  A.  K.  Marsh,  437  ;  Harris  v.  Knicker- 
backer,  5  Wend.,  638;  Coles  v.  Bowne,  10  Paige  Ch.,  526;  Champlin  v.  Parish, 

11  lb.,  405  ;  Hollingshead  v.  McKenzie,  8  Ga.,  457  ;  Kirksey  v.  Kirksey,  30  lb., 
156;  Dean  v.  Dean,  9  N.J.  Eq.,425;  Walker  v.  Hill,  21  lb.,  191  ;  Artz  v.  Grove, 
21  Md.,  456;  Dyer  v.  Martin,  4  Scam.,  146;  Tarleton  v.  Vietes,  i  Gilm.,  /170; 
Switzer  V.  Skiles,  3  lb.,  529;  Garner  v.  Stubblefield,  5  Texas,  552;  Woods  v. 
Dille,  II  Ohio,  455;  Minns  v.  Morse,  15  lb.,  568;  Winn  v.  Albert,  2  Md.  Ch., 
169;  McGowen  v.  West,  7  Mo.,  569;  Whiting  v.  Gould,  2  Wis.,  552;  Burt  v. 
Wilson,  28  Cal.,  632  ;  Trapnall  v.  Brown,  19  Ark.,  39  ;  Vandwyne  v.  Vreeland, 

12  N.  J.  Eq..  142 ;  Esmay  v.  Gorton,  18  111.,  483  ;  Semmes  v.  Worthington,  38 
Md.,  298 ;  Billingslea  v.  Ward,  33  Md.,  48. 

*  Child  V.  Godolphin,  i  Dick.,  39 ;  Child  v.  Comber,  3  Swanst.,  423,  note.    See 
Cottington  v.  Fletcher,  2  Atk.,  155;  Lacon  v.  Mertins,  3  lb.,  3. 


§  292.  AGREEMENT  HOW  PLEADED.  399 

of  the  Statute.'  The  defence  that  an  agreement,  admitted 
to  have  been  made,  is  not  in  writing,  must  be  pleaded  as  a 
fact,  and  distinctly  put  in  issue.  Stating,  in  the  answer, 
that  the  contract  is  void  in  law,  and  that  the  defendant  is 
not  bound  to  perform  the  same,  is  not  sufficient.''  When 
letters  are  pleaded  as  constituting  the  agreement,  no  other 
evidence  than  the  letters  is  admissible  ;  so  that  if  there  is  a 
failure  to  make  out  the  agreement  by  them,  the  bill  will  be 
dismissed.  But  when  letters  are  only  introduced  as  evidence 
of  the  agreement,  if  they  do  not  prove  it,  other  evidence 
may  be  given. ^ 

'  Whitbread  v.  Brockhust,  i  Bro.  C.  C,  416  ;  Whitchurch  v.  Bevis,  2  lb.,  559  ; 
Kine  v,  Balfe,  2  B.  &  B.,  343;  Rondeau  v.  Wyatt,  2  H.  BI.,  68  ;  Blagden  v. 
Bradbear,  12  Ves.,  466;  Thompson  v.  Tod,  Pet.  C.  C,  380;  Argenbright  v. 
Campbell,  3  Hen.  &  Munf.,  144;  Stearns  v.  Hubbard,  8  Me.,  122;  Winn  v. 
Albert,  supra  ;  Barnes  v.  Teague,  i  Jones  Eq.,  277. 

-  Skinner  v.  McDouall,  2  De  G.  &  S.,  265  ;  Vaupell  v.  Woodward,  2  Sandf. 
Ch.,  143.  Aiid  see  Barry'  v.  Coombe,  i  Pet.,  640 ;  Rhodes  v.  Rhodes,  3  Sandf. 
Ch.,  283.  A  contract  within  the  statute  of  frauds  not  being  illegal,  but  only  in- 
capable of  enforcement,  the  court  will  not  interpose  the  statute.  The  defence, 
therefore,  unless  raised  by  the  pleadings,  will  in  general  be  regarded  as  waived. 
Fall  V.  Hazelrigg,  45  Ind.,  576  ;  Browne,  St.  of  Fr.,  Sec.  508.  A  parol  agree- 
ment to  buy  land  sold  under  execution  for  the  benefit  uf  the  judgment  debtor, 
and  return  him  whatever  was  realized  on  a  resale,  or  that  the  land  should  be 
conveyed  to  him  on  paying  the  amount  bid  by  the  purchaser,  was  enforced, 
though  free  from  fraud,  where  the  statute  of  frauds  was  not  pleaded.  Dodd  v. 
Wakeman,  26  N.  J.  Eq.,  484.  The  statute  of  frauds  may  be  objected  by  a  de- 
murrer for  the  want  of  suflicient  facts.  Carlisle  v.  Brennan,  67  Ind.,  12.  It  has 
been  held  that  the  objection  may  be  made  at  the  trial  without  being  previously 
pleaded.  Suman  v.  Springate,  lb.,  115.  When  the  plaintiff  alleges  that  there 
were  several  joint  contractors,  and  the  defendant  in  his  answer  denies  the  con- 
tract, but  does  not  plead  the  misjoinder  of  parties  defendant,  the  plaintiff  may 
have  judgment  against  such  of  the  defendants  as  entered  into  the  contract. 
Rutenberg  v.  Main,  47  Cal.,  213. 

'  Birce  v.  Bletchley,  6  Mad.,  17.  It  has  been  held  that  if  the  defendant  neglect 
to  put  in  an  answer,  specific  performance  will  be  decreed  on  the  bill  as  taken 
pro  confesso,  Newton  v.  Swazey,  8  N.  H.,  9.  But  this  would  not  be  in  accord- 
ance with  the  existing  practice  of  several  of  the  States,  by  which,  in  such  a  case, 
the  plaintiff  would  be  required  to  establish  his  claim  to  a  decree  by  satisfactory 
proof. 


CHAPTER  X. 


MISREPRESENTATION,   FRAUD,  OR  MISTAKE. 

293.  Nature  and  effect  of  misrepresentation  in  general. 

294.  Instances  of  misrepresentation  illustrating  the  rule. 

295.  Claim  to  relief  affected  by  delay,  or  other  circumstances. 

296.  Where  the  party  seeking  performance  fails  to  fulfil  an  independent  en- 

gagement. 

297.  How  misrepresentation  may  be  made. 

298.  Fraud  by  the  suppression  of  a  fact. 

299.  Concealment  of  facts  a  bar  to  specific  performance. 

300.  Concealment  of  facts  a  ground  for  the  rescission  of  contract. 

301.  Duty  of  vendor  to  disclose  defects. 

302.  Purchaser  not  bound  to  communicate  what  he  knows  of  the  value  of  the 

subject  of  sale. 

303.  Indispensable  prerequisites  to  relief  in  case  of  alleged  false  statement. 

304.  Representation  to  constitute  a  defence,  must  be  false. 

305.  Effect  in  general  of  false  assertion  made  by  a  person  who  does  not  know 

whether  it  is  true  or  false. 

306.  Misrepresentation  of  agent. 

307.  Duty  of  party  to  correct  false  statement. 

308.  Effect  of  misrepresentation  innocently  made  by  party  seeking  specific 

performance. 

309.  False  statement  must  have  been  made  in  order  to  induce  the  other  party 

to  enter  into  the  contract. 

310.  Misrepresentation  need  not  have  been  made  with  a  wrongful  intent. 

311.  Party  to  whom  false  statement  was  made  must  have  relied  on  it. 

312.  A  purchaser  seeking  relief  from  a  misrepresentation  must  not  have  been 

guilty  of  negligence  or  unreasonable  delay. 

313.  Where  the  relation  between  the  parties  is  one  of  tmst  and  confidence. 

314.  Extravagant  expressions  of  opinion  or  judgment. 

315.  Presumptions  that  false  statement  exercised  no  influence. 

316.  Where  a  person  to  whom  misrepresentations  are  made  investigates  the 

matter. 

317.  Where  the  means  of  information  are  equally  open  and  accessible  to  both 

parties. 

318.  Misrepresentation  not  a  defence  to  assignee  of  contract. 

319.  Misrepresentation  must  have  made  the  contract  unconscionable. 

320.  Fraud  how  regarded  in  equity. 

321.  Burden  of  proof  in  case  of  fraud. 

322.  Heads  into  which  fraud  may  be  divided. 

323.  Parol  evidence  to  show  fraud  in  the  terms  of  a  written  instrument. 

324.  Evidence  of  fraudulent  omission  from  writing. 

325.  Fraudulent  use  of  written  instrument. 

326.  Third  person  how  affected  by  fraud. 

327.  Proof  of  fraud  from  inadequacy  of  consideration. 

328.  Inquiry  into  value  when  material. 

329.  Remedy  of  party  injured  by  fraud. 

330.  Effect  of  false  recital  in  deed. 

331.  Gaming  contracts. 

332.  Rule  as  to  usury. 

333.  Agreement  by  compulsion. 

334.  When  trust  implied. 


§  293- 


RULE    AS    TO    FALSE    STATEMENTS.  4OI 


335.  Fraud  by  agent. 

336.  Attempt  to  derive  benefit  from  fraudulent  transaction. 

337.  Who  may  complain  of  fraud. 

338.  Judgment  procured  by  fraud. 

339.  htatute  in  affirmance  of  the  common  law  in  case  of  debtor  and  creditor. 

340.  Agreements  in  fraud  of  creditors. 

341.  When  voluntary  conveyance  deemed  fraudulent. 

342.  Construction  of  statute  in  relation  to  voluntary  conveyances. 

343.  Fraud  in  sales  at  auction. 

344.  Fraudulent  combinations. 

345.  Unconscionable  proceedings  at  law  restrained. 

346.  Duty  of  party  upon  finding  that  he  has  been  defrauded, 

347.  Waiver  of  fraud. 

348.  Definition,  and  effect  in  general,  of  mistake. 

349.  Ground  for  allowing  mistake  as  a  defence. 

350.  General  rule  as  to  mistake  of  law. 

351.  Mistake  as  to  legal  effect  of  writing. 

352.  Intent  of  parties  not  expressed  through  mistake  of  law. 

353.  Mistaking  law  in  compromise. 

354.  Mistake  of  law  caused  by  other  party. 

355.  When  ignorance  of  law  will  be  relieved  against. 

356.  Agreement  of  parties  not  affected  by  subsequent  legal  decision. 

357.  Relief  where  there  is  a  mistake  of  both  law  and  fact. 

358.  Exercise  of  jurisdiction  in  case  of  mistake  of  fact. 

359.  Mistake  must  be  material. 

360;  Regard  had  to  intention  of  parties. 

361.  Mistake  of  defendant  without  fault  of  plaintiff. 

362.  Where  defendant  has  been  misled  by  plaintiff". 

363.  Examples  of  relief  where  mistake  was  not  caused  by  plaintiff". 

364.  Parties  between  whom  equity  will  interfere. 

365.  Different  modes  of  mistake. 

366.  Mutual  mistake  as  to  subject  matter. 

367.  Where  nature  of  contract  is  misunderstood. 

368.  Mistake  in  reducing  agreement  to  writing. 

369.  Where  a  deed  is  not  drawn  according  to  intention  of  parties. 

370.  Mistake  as  to  land  conveyed,  or  as  to  name  of  party. 

371.  Mistake  of  scrivener. 

372.  Reformation  of  mortgage. 

373.  Where  a  term  is  intentionally  omitted. 

374.  Changing  contract  by  subsequent  parol  agreement. 

375.  Where  enforcement  of  contract  with  parol  variation  would  be  unfair. 

376.  When  plaintiff,  in  case  of  parol  variation,  compelled  to  elect. 

377.  Where  customary  clause  has  been  omitted. 

378.  Slight  evidence  of  mistake  not  available. 

379.  Right  of  plaintiff  to  correct  mistake  by  parol  evidence. 

380.  Proof  where  the  mistake  is  denied  in  the  answer. 

381.  Where  legal  right  has  been  lost  through  mistake. 

382.  How  mistake  should  be  alleged. 

383.  Discretion  of  court  where  parol  variation  is  set  up  in  defence. 

384.  Regard  had  to  equities  of  parties. 

385.  Effect  of  lapse  of  time. 

386.  Parol  agreement  to  abandon  contract. 

387.  Defective  execution  of  power, 

388.  Mistake  in  award. 

§  293.  Rule  as  to  false  statements. — The  misrepresenta- 
tion of  a  material  fact,  deliberately  made  with  intent  to 
deceive,  constitutes  fraud,  for  which  there  is  a  remedy  both 
26 


402  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §   293 

at- law  and  in  equity.'  And  it  is  likewise  fraud  if  recklessly- 
made  in  the  absence  of  knowledge  of  its  truth  or  falsity, 
though  uttered  without  a  corrupt  motive."  The  require- 
ments and  modifications  of  the  rule  in  equity  relative  to 
representations,  will  be  considered  presently.  It  may  be 
stated  here,  that  a  misrepresentation  made  by  one  person  to 
another  in  relation  to  a  contract  between  them,  may  be  a 
ground  for  the  refusal  of  the  court  to  decree  specific  per- 
formance at  the  suit  of  the  former.'  So,  the  statement  of 
a  falsehood,  or  concealment  of  a  truth,  which,  if  correctly 
known,  would  probably  have  been  a  reason  for  making 
the  terms  of  the  contract  different,  will  be  good  cause  for 
rescinding  the  agreement.'     The  same  construction  must 

'  Broderick  v.  Broderick,  i  P.  Wms.,  240  ;  Jarvis  v.  Duke,  i  Vern.,  19 ;  Adam- 
son  V.  Evitt,  2  R.  &  M.,  71  ;  Jennings  v.  Broughton,  6  De  G.  M.  &  G.,  126  ; 
McShane  v.  Hazlehurst,  50  Md.,  107. 

-  West  V.  Jones,  i  Sim.  N.  S.,  207  ;  Taylor  v.  Ashworth,  11  M.  &  W.,  413  ; 
Evans  v.  Edmonds,  13  C.  B.,  786;  Rawlins  v.  Wickham,  3  De  G.  &  J.,  304; 
Hazard  v.  Irwin,  18  Pick.,  96  ;  Stone  v.  Denny,  4  Mete,  151  ;  Lindsey  v.  Veasy, 
62  Ala.,  421  ;  post,  §§  505,  510. 

^Edwards  v.  M'Leay,  2  Swanst.,  287  ;  Wilde  v.  Gibson,  i  House  of  Lds., 
605  ;  Stapylton  v.  Scott,  13  Ves.,  425  ;  Lord  Gordon  v.  Lord  Hertford,  2  Mad., 
106  ;  Clowes  v.  Higginson,  i  Ves.  &  Beav.,  524 ;  Monro  v.  Taylor,  8  Hare,  56  ; 
Swaisland  v.  Dearsiey,  29  Beav.,  430;  Cockrane  v.  Willis,  L.  R.  i,  Ch.  58; 
Harnett  v.  Yielding,  2'Sch.  &  Lef,  549  ;  James  v.  State  Bank,  17  Ala.,  69  ;  Ful- 
ler v.  Perkins,  7  Ohio,  196;  Solinger  v.  Jewett,  25  111.,  479;  Gilroy  v.  Alis,  22 
Iowa,  174;  Wuesthoff  v.  Seymour,  22  N.  J.  Eq.,  69;  Plummer  v.  Keppler,  26 
lb,,  481  ;  Snedaker  v.  Moore,  2  Duvall,  542;  Cuff  v.  Dorland,  50  Barb.,  438; 
Spurr  v.  Benedict,  99  Mass.,  406  ;  Hill  v.  Brower,  76  N.  C,  124.  Where  a  per- 
son, by  false  and  fraudulent  representations  as  to  the  extent  of  his  business,  in- 
duces another  to  enter  into  a  partnership  with  him  for  a  definite  time,  as  a 
court  of  law  could  afford  no  adequate  relief,  equity  has  jurisdiction  to  order  the 
partnership  articles  to  be  cancelled,  to  restrain  the  defendant  from  using  the 
plaintiff's  name  as  a  partner,  and  to  order  the  defendant  to  repay  the  money  ad- 
vanced on  account  of  the  partnership.     Smith  v.  Everett,  i'/6  Mass.,  304. 

''  White  V.  Flora,  2  Overton,  426  ;  Woods  v.  Hall,  i  Dev.  Eq.,  415 ;  Rayner  v. 
Wilson,  43  Md.,  440;  Comyn  on  Contr.,  Vol.  3,  p.  304.  See  Addison  on  Con., 
6th  Ed.,  84.  The  party  injured  may  elect  to  rescind  the  contract,  or,  affirming 
it,  to  recover  damages  for  the  injur)%  or  to  insist  on  it  as  a  defence  to  an  action 
founded  on  the  contract.  Thweatt  v.  McLeod,  56  Ala.,  375.  For  the  rule 
which  prevents  specific  performance  being  adjudged  in  cases  of  fraud,  mistake, 
surprise,  and  hardship,  see  Lynch  v.  Brockhoff,  15  Abb.  Pr.,  357,  «^/^.  Upon 
the  principle  that  the  plaintiff  must  show  that  the  relief  asked  for  by  him  is 
strictly  equitable  with  reference  to  the  parties  and  subject  matter  of  the  con- 
tract, the  court  will  refuse  to  compel  the  specific  performance  of  contracts 
founded  upon  fraud,  imposition,  or  mistake  ;  and  where  performance  will  operate 
as  a  surprise  upon  the  party  against  whom  it  is  sought  to  be  enforced,  courts 
will  generally  leave  the  parties  as  they  find  them,  liable  only  to  such  redress  as 
can  be  obtaine^d  at  law.     Canterbury  Aqueduct  Co.  v.  Ensworth,  22  Conn.,  608. 


§   293'  RULE    AS    TO    FALSE    STATEMENTS.  4O3 

be  given  and  the  same  consequences  will  follow,  when  mis- 
representations accompany  a  verbal  agreement  which  is 
sought  to  be  enforced,  as  if  such  misrepresentations  had 
been  inserted  in  a  written  contract/  When  a  person  enters 
into  an  engagement  on  the  faith  of  a  misrepresentation 
made  to  him,  the  entire  contract  is  thereby  rendered  in- 
valid, it  being  impossible  in  such  a  case  to  determine  how 
far  the  false  statement  may  have  operated  to  induce  him  to 
accept  the  proposition  of  the  other  party/  Consequently, 
an  offer  by  the  latter  to  waive  any  benefit  or  advantage  he 
may  have  derived  from  the  misrepresentation  will  not  avail 
him/  Where  a  person,  having  made  an  untrue  statement 
in  good  faith,  subsequently  discovers  his  error,  it  is  his  duty 
to  inform  the  other  party  of  it ;  and  if  he  does  not,  but 
suffers  the  other  to  act  on  the  false  statement,  equity  will 
regard  it  as  a  fraudulent  misrepresentation/  Where  the 
defendant  entered  into  and  partly  executed  a  contract  to 
convey  land  to  the  plaintiff  in  exchange  for  tenements 
which  the  plaintiff  represented  were  rented  at  certain  rates, 
but  which  the  defendant  discovered  were  misstated,  where- 


The  defendant  may  show  by  parol  evidence  that  the  written  instrument  sought 
to  be  enforced  against  him  does  not  correctly  express  the  agreement  of  the 
parties,  but  that  there  is  some  material  omission,  insertion,  or  variation,  contrary 
to  their  intention  or  understanding.  Marquis  of  Townshend  v.  Stangroom,  6 
Ves.,  328  ;  Ramsbottom  v.  Gosden,  i  V.  &  B.,  165  ;  Rich  v.  Jackson,  4  Bro.  C. 
C,  514  ;  Gillespie  v.  Moon,  2  Johns  Ch.,  585.  A  broken  stipulation  as  to  time, 
to  furnish  a  defence  to  a  suit  for  specific  performance,  must  be  of  such  a  char- 
acter as  to  constitute  a  condition  precedent  to  the  petitioner's  right  to  enforce 
the  contract,  or  be  such  as  on  its  non-fulfilment  without  reasonable  excuse,  to 
render  in  terms  the  contract  void  ;  or  in  some  other  manner  to  make  it  clearly 
inequitable,  under  circumstances  of  fraud,  mistake,  surprise,  delay,  gross 
neglect,  bad  faith,  or  other  manifest  unconscientiousness,  that  the  petitioner 
should  have  a  decree.  Ouinn  v.  Roath,  37  Conn.,  16.  A  court  of  equity  has 
jurisdiction  to  rescind  a  contract  where  a  party  purchased  goods  by  false  repre- 
sentations, and  gave  his  note  without  intending  to  pay.  But  it  has  no  juris- 
diction to  direct  a  seizure  of  the  goods,  and  in  that  way  to  enforce  payment  of 
the  note,  even  where  the  goods  can  be  identified  in  the  hands  of  the  purchaser  ; 
the  remedy  in  such  case  being  at  law.     Monroe  v.  Cutter,  9  Dana,  1 93. 

'  Thompson  v.  Tod,  i  Pet.  C.  C,  380.  Fraud  may  be  committed  by  an  in- 
tentional misrepresentation  either  of  the  law  or  the  facts.  When  that  is  estab- 
lished, the  court  will  not  only  refuse  to  decree  specific  performance  of  the  agree- 
ment, but  will  reUeve  against  it,     Broadwell  v.  Broadwell,.  i  Gilman,  599. 

^  Reynell  v.  Sprye,  i  De  G.  M,  &  G.,  709  ;  Stewart  v.  AUiston,  i  Meriv.,  26. 

^  Clermont  v.  Tasburgh,  i  J.  &  W.,  119. 

*  Reynell  v.  Sprye,  supra  ;  Clapham  v.  Shillito,  7  Beav.,  149. 


404  MISRErRESENTATION,    FRAUD,    OR    MISTAKE.         §   294. 

upon  he  refused  to  complete  the  contract,  it  was  held  that 
the  suit  could  not  be  maintained,  although  it  appeared  that 
such  representations  were  not  fraudulent,  and  that  the 
plaintiff  had  offered  compensation  for  the  deficiency  in  the 
rent.' 

§  294.  Examples  of  misrepresentation. — Among  the  nu- 
merous cases  illustrative  of  the  subject,  the  following  may 
be  taken  as  examples :  Where,  in  a  suit  for  the  specific 
performance  of  an  agreement  to  exchange  city  property 
for  a  farm  in  a  distant  State,  it  appeared  that  while  the 
treaty  between  the  parties  for  the  exchange  was  in  progress, 
both  the  defendant  and  his  wife  were  anxious  to  know 
whether  fever  and  ague  existed  in  the  vicinity  of  the  farm, 
and  inquired  of  the  plaintiff  as  to  it,  \\\\o  said  that  there 
was  none  there,  and  that  the  healthfulness  of  that  locality 
was  good  in  this  respect,  and  it  was  evident  that  the  de- 
fendant and  his  wife  made  the  absence  of  that  disease  a 
material  ground  for  accepting  the  offer  of  the  plaintiff,  the 
bill  was  dismissed  with  costs.''  A.  was  induced  to  purchase 
from  B.  certain  land  on  the  Ohio  river,  by  the  representa- 
tions of  B.,  that  there  was  a  productive  coal-mine  on  the 
land,  capable  of  being  worked  advantageously,  and  with 
facility,  when  in  fact  there  was  no  coal-mine  on  the  land, 
though  there  was  coal  adjacent  thereto  in  the  bed  of  the 
river,  which  could  only  be  obtained  at  great  cost  and  haz- 
ard. It  was  decreed  that  B.  be  perpetually  enjoined  from 
prosecuting  any  suit  to  recover  an  annuity  which  A.  had 


'  Boynton  v.  Hazelboom,  14  Allen,  107.  Where  a  person  agreed  to  convey 
three  lots  of  land,  and  represented  that  two  of  the  lots  were  subject  to  a  mort- 
gage for  seventeen  hundred  and  fifty  dollars  each,  and  the  third  to  a  mortgage 
for  sixteen  hundred  dollars,  it  was  held  that  he  could  not  maintain  a  suit  for 
specific  performance,  it  appearing  that  the  mortgages  were  for  different  sums  on 
each  lot,  although  in  the  aggregate  they  amounted  to  the  sum  represented. 
Park  V.  Johnson,  7  Allen,  378. 

°  Holme's  Appeal,  T]  Pa.  St.,  50.  Where  a  party  to  a  contract  to  convey 
land  for  a  barge  and  steamboat  interest,  was  induced  to  enter  into  such  con- 
tract through  false  representations  as  to  the  quality  and  capacity  of  the  barge, 
and  the  condition  of  the  liens  on  the  steamer,  the  court  refused  a  decree  for 
specific  performance.  Wells  v.  Millett,  23  Wis.,  64.  See  Carmichael  v.  Vande- 
bur,  50  Iowa,  651. 


§   294-  EXAMPLES    OF    MISREPRESENTATION.  405 

agreed  to  pay  B.  for  twenty  years,  in  case  the  mine  proved 
productive.'  Where  the  owner  of  prairie  land  which  was 
destitute  of  timber,  and  for  that  reason  not  valuable,  falsely 
represented  to  another,  that  the  tract  included  other  land 
which  was  well  timbered,  and  thereby  induced  the  latter  to 
purchase  the  property,  the  contract  of  sale  was  rescinded.^ 
So,  where  the  vendee  induced  the  vendor  to  contract  for 
the  sale  of  wild  lands,  fraudulently  misrepresenting  to  the 
vendor  their  value,  knowing  at  the  time  that  the  vendor 
had  not  seen  them  for  many  years,  the  court  declared  the 
contract  void.'  A.  sold  to  B.  a  farm,  receiving  in  payment 
certain  shares  in  a  corporation  which  were  in  fact  valueless, 
but  which  were  falsely  represented  by  B.,  and  also  by  C. 
and  D.,  who  were  concerned  in  the  company,  to  be  worth 
several  thousand  dollars.  On  a  bill  in  equity  by  A.,  it  was 
held  that  the  sale  must  be  rescinded,  the  shares  be  recon- 
veyed  to  B.,  and  the  farm  to  A.,  and  a  master  was  directed 
to  report  the  amount  of  rents  and  waste,  after  deducting  the 
cost  of  permanent  improvements  which  should  be  allowed 
to  A.  by  B.  ;  that  if  neither  the  land  nor  the  shares  could 
be  reconveyed,  the  master  should  examine  and  report  the 
damages  sustained  by  A.,  and  a  decree  be  entered  against 
the  defendants  for  the  amount ;  and  that  if  the  farm  could 
be  reconveyed,  and  not  the  shares,  the  former  should  be 
done,  and  the  net  income  ascertained  and  paid,  deducting 
therefrom  the  value  of  the  shares,  if  anything,  and  in- 
terest.* 

^  Dale  V.  Roosevelt,  5  Johns  Ch.,  173,  Affd.  on  Appeal,  2  Cowen,  129.  In 
this  case  there  was  no  evidence  of  fraud,  or  that  the  misrepresentation  w^as  in- 
tentional. 

''Hickey  v.  Drake,  47  Mo.,  369.  ^  Kelley  v.  Sheldon,  8  Wis.,  258. 

*  Warner  v.  Daniels,  i  Woodbury  &  Minot,  90.  A  person  who  induces  an- 
other to  execute  an  instrument  by  false  and  fraudulent  statements  as  to  its  legal 
effect,  will  not  be  permitted  to  avail  himself  of  such  instrument  to  the  injury  of 
the  other.  Therefore,  where,  after  the  commencement  of  an  action,  the  plain- 
tiff, who  could  not  read,  was  induced  to  execute  a  discharge  of  all  demands,  by 
the  false  and  fraudulent  representations  of  the  defendant  that  the  discharge 
would  not  affect  the  existing  suit,  it  was  held  that  the  plaintiff  was  entitled  to 
judgment.  Chestnut  Hill  Reservoir  Co.  v.  Chase,  14  Conn.,  123.  Accommo- 
dation indorsers  of  a  bill,  took  from  the  debtor  a  deed  of  trust  to  a  trustee  as 
security.     After  the  bill  was  negotiated,  they  indorsed  a  new  bill,  and  agreed 


406       MISREPRESENTATION,  FRAUD,  OR  MISTAKE.    §§  295,  296. 

§  295.  When  party  not  entitled  to  i^elief.  —  The  rule 
under  consideration  is  to  be  taken  with  this  qualification, 
that  when  the  complainant  has  been  overreached  by  the 
respondent  in  a  material  degree,  by  impositions,  conceal- 
ments, or  misrepresentations,  on  which  the  complainant 
properly  relied,  he  is  entitled  to  relief,  unless  there  has  been 
great  and  unexpected  delay  in  seeking  it,  or  there  is  an 
adequate  remedy  at  law,  or  a  condition  of  the  property  in 
controversy  which  renders  it  impracticable  for  the  court, 
on  any  sound  principle,  to  grant  redress/  In  such  case,  all 
the  circumstances,  and  the  character  and  relations  of  the 
parties,  are  proper  subjects  of  inquiry.'  If  between  the 
time  of  making  the  contract  and  applying  to  rescind  it 
great  changes  have  taken  place  in  the  value  of  the  property, 
the  lapse  of  time  is  an  important  consideration.  Where, 
however,  there  has  been  no  material  change  in  the  property 
since  the  contract,  so  that  it  can  be  restored  by  the  pur- 
chaser in  as  good  condition  as  he  received  it,  and  he  offers 
to  rescind  the  contract  within  a  reasonable  time  after  he 
has  ascertained  that  the  representations  were  untrue,  lapse 
of  time  furnishes  no  well-grounded  objection  to  the  relief 
sought.' 

§296.  Failure  of  plaintiff  to  fulfil  a  promise. — One  of 
the  most  usual  cases  in  which  the  court  remains  passive  is 
where,  though  there  is  no  doubt  as  to  the  contract  itself, 
and  as  to  the  plaintiff's  legal  right  under  it,  yet  the  defend- 
ant has  been  induced  to  enter  into  it  in  consequence  of 
some  independent  engagement  by  the  plaintiff  to  do  some 
other  act  which  he  has  failed  to  perform.      If,  under  such 

for  a  new  deed  of  trust  on  the  same  property,  of  which  the  trustee  had  notice. 
The  orig'inal  deed  was  altered  as  to  date,  and  duly  recorded.  Subsequently  the 
trustee,  being  assured  by  the  debtor  that  the  former  deed  was  discharged,  took 
a  deed  of  trust  for  his  own  benefit  on  the  same  property.  It  was  held  that  the 
property  should  be  sold  for  the  benefit  of  the  cestuis  que  trust  in  the  original 
deed.     Gazzard  v.  Webb,  4  Porter  (Ala.),  73. 

'  Colt  V.  Woolaston,  2  P.  Wms.,  154;  Blain  v.  Agar,  i  Sim.,  37,  45  ;  S.  C,  2 
lb.,  289. 

'  Neville  v.  Wilkinson,  i  Bro.  C.  C,  546;  Roosevelt  v.  Fulton,  2  Cow.,  129. 

2  Taylor  v.  Fleet,  i  Barb.,  47,  per  Harris,  J, 


§  297-      HOW  DECEPTION  MAY  BE  PRACTICED.        407 

circumstances,  the  plaintiff  does  not  do  that  which  he  has 
undertaken,  even  though  it  be  an  engagement  incapable  of 
being  legally  enforced,  equity  will  leave  him  to  obtain  such 
redress  as  he  may  be  entitled  to  at  law.'  It  has  accordingly 
been  held,  that  where  real  estate  has  been  bought  upon 
representations  made  by  the  vendor  as  to  prospective  im- 
provements upon  adjoining  land,  or  as  to  the  latter  being 
used  in  such  a  way  as  to  enhance  the  value  of  the  land  sold, 
specific  performance  will  not  be  decreed  in  behalf  of  the 
vendor  unless  he  makes  good  his  representations.'  Upon 
the  same  principle,  a  person  having  contracted  to  take  the 
lease  of  premises  upon  the  representation  of  the  owner  that 
they  were  suitable,  or  that  he  would  make  them  suitable, 
for  a  certain  purpose,  which  was  not  done,  it  was  held  that 
the  owner  was  not  entitled  to  specific  performance."  Where 
a  person  purchased  land  at  a  very  high  price,  on  the  faith 
of  the  representation  of  the  vendor  that  permanent  improve- 
ments were  to  be  made  in  the  immediate  vicinity,  and  the 
vendor  failed  to  make  the  promised  improvements,  it  was 
held  that  he  could  not  enforce  payment  of  so  much  of  the 
purchase  money  as  exceeded  the  value  of  the  land  without 
the  improvements.*  If,  however,  there  are  independent 
covenants  and  agreements,  a  breach  of  one  may  not  afford 
an  answer  to  a  claim  for  specific  performance.' 

§  297.  Hoiv  deception  may  be pr^acticed. — The  misrepresen- 
tation need  not  necessarily  have  been  by  anything  spoken. 
It  may  be  by  conduct."  As  where  fraudulent  experiments 
are  made,  on  the  faith  of  which  an  agreement  is  entered 

'  Myers  v.  Watson,  i  Sim.  N.  S.,  523.  -  Beaumont  v.  Dukes,  Jacob,  422. 

^  Lamare  v.  Dixon,  6  House  of  Lds.,  414. 

*  Rogers  v.  Salmon,  8  Paige  Ch.,  559. 

"  Gibson  v.  Goldsmid,  5  De  G.  M.  &  G.,  757. 

*  "  A  nod,  or  a  \vinl<,  or  a  shake  of  the  head,  or  a  smile  from  the  purchaser, 
intended  to  induce  the  vendor  to  believe  the  existence  of  a  non-existing  fact, 
which  might  influence  the  price  of  the  subject  to  be  sold,  is  a  fraud  at  law.  So, 
a  fortiori,  would  a  contrivance  on  the  part  of  the  purchaser,  better  informed 
than  the  vendor  of  the  real  value  of  the  subject  to  be  sold,  to  hurry  the  vendor 
into  an  agreement  without  giving  him  the  opportunity  of  being  fully  informed  of 
its  real  value,  or  time  to  deliberate  and  take  advice  respecting  the  conditions  of 
the  bargain."     Lord  Campbell  in  Walters  v.  Morgan,  3  De  G.  F.  &  J.,  724. 


408  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §   298. 

into  ; '  or  where  a  party  is  deceived  by  pretended  maps  or 
plans  of  the  property."  The  whole  of  a  tract  of  land,  ex- 
cepting a  small  portion,  was  divided  into  lots  by  the  owner 
and  put  up  for  sale,  one  of  the  conditions  being  that  no 
public  house  should  be  erected  thereon,  and  no  trade  be 
carried  on  upon  the  property.  In  the  particulars  of  sale  the 
property  was  described  as  the  M.  estate,  and  there  was 
nothing  to  indicate  that  any  part  of  the  vendor's  estate  was 
excluded.  In  the  plan  annexed  to  the  particulars  the  dif- 
ferent lots  were  colored  ;  but  not  the  excepted  piece,  which 
was  not  marked  with  the  vendor's  name,  though  the  names 
of  the  adjoining  owners  were  printed.  It  was  unlikely  that 
a  public  house  would  be  built  on  any  of  the  adjoining  es- 
tates. It  was  held  that  a  purchaser  of  one  of  the  lots,  con- 
sisting of  a  dwelling-house  a  hundred  yards  distant  from  the 
excepted  piece  of  land,  who  had  bought  in  the  belief  that 
the  whole  of  the  vendor's  estate  was  included  in  the  par- 
ticulars of  sale,  could  not  be  compelled  to  complete  his 
purchase  unless  the  vendor  would  enter  into  a  restrictive 
covenant  as  to  the  excepted  piece  of  land." 

§  298.  Suppression  of  facts  how  regarded. — A  species 
of  misrepresentation  consists  in  the  concealment  of  a  ma- 
terial fact  which  it  is  the  duty  of  one  party  to  the  contract 
to  communicate  to  the  other ; '  for  the  suppression  of  such 
a  fact  by  a  person  who  knows  that  the  other  party  to  the 
transaction  has  no  idea  of  anything  of  the  kind,  is  as  much 
a  fraud  as  if  the  existence  of  the  fact  were  expressly  denied." 
The  vendor  is  bound  to  inform  the  purchaser  of  all  the  in- 
cidents to  which  the  property  is  subject,  in  language  intel- 
ligible to  the  common  understanding."  When  the  vendor's 
statements  are  ambiguous,  the  purchaser  is  not  required  to 

'  Lovell  V.  Hicks,  2  Y.  &  C.  Ex.,  46.        "  Peacock  v.  Penson,  11  Beav.,  355. 
'  Bascomb  v.  Beckwith,  L.  R.  8,  Eq.  100. 

*  Edwards  v.  M'Leay,  2  Swanst.,  287  ;  Tapp  v.  Lee,  3  B.  &  P.,  371  ;  Oakes  v. 
Turquand,  L.  R.  2,  House  of  Lds.  326. 

*  Conyers  v.  Ennis,  2  Mass.,  236.      "  Sheard  v.  Venables,  36  L.  J.  Ch.,  922. 


§   298.  SUPPRESSION    OF    FACTS    HOW    REGARDED.  4O9 

ascertain  their  meaning  at  his  peril'  But  the  concealment, 
to  be  deemed  material,  must  be  relative  to  a  matter  which 
the  party  was  bound  to  disclose,  and  which,  if  it  had  been 
known  to  the  other  party,  would  probably  have  prevented 
his  entering  into  the  contract.""  When  a  person  negotiates 
commercial  paper  payable  to  bearer,  or  under  the  blank  in- 
dorsement of  another  person,  he  warrants  that  he  has  no 
knowledge  of  any  facts  which  prove  the  paper  to  be  worth- 
less on  account  of  the  failure  of  the  maker,  or  from  its 
having  already  been  paid  or  otherwise  become  void,  and 
any  concealment  in  relation  thereto,  would  constitute  a 
fraud.'  The  mere  failure  of  the  purchaser  to  disclose  his 
insolvency,  is  not  deemed  fraudulent  so  as  to  affect  the 
title  to  the  property  purchased.  But  if  there  is  a  condition 
of  known  insolvency  undisclosed,  and  an  existing  intention 
on  the  part  of  the  purchaser  not  to  pay  for  the  property, 
fraud  may  be  affirmed."  Where  a  merchant,  knowing  that 
he  is  insolvent,  buys  goods  without  disclosing  the  fact,  there 
being  no  inquiry  made,  he  is  not  necessarily  guilty  of  fraud, 
as  he  may  honestly  believe  that  he  can  extricate  himself 
from  his  embarrassments.'  If,  however,  a  purchaser  who 
is  insolvent  obtains  goods  without  intending  to  pay  for 
them,  it  is  a  fraud  upon  the  vendor,  and  the  property  in  the 
goods  will  not  be  changed.'  So,  if  a  merchant  in  good 
credit  buy  goods  upon  his  own  responsibility,  he  knowing 
at  the  time  that  he  is  insolvent,  but  concealing  the  fact 
from  the  seller  for  the  purpose  of  placing  them  in  the  hands 


^  Drysdale  v.  Mace,  5  De  G.  M.  &  G.,  107  ;  Martin  v.  Cotter,  3  J.  &  L.,  507 ; 
Swaisland  v.  Dearsley,  29  Beav.,  430. 

-  Haywood  v.  Cope,  25  Beav.,  140;  Hallows  v.  Fernie,  L.  R.  3,  Eq.  536 ;  Kent 
V.  Freehold  Land  &  Brick-Making  Co.,  4  lb.,  598 ;  Young  v.  Bumpass,  Freem. 
(Miss.),  Ch.,  241  ;  Pearett  v.  Shawbhut,  5  Miss.,  323  ;  Steele  v.  Kinkle,  3  Ala.,  352  ; 
Jouzin  V.  Toulmin,  9  lb.,  662.  Where  a  man,  having  contracted  for  the  sale  of 
a  vessel  "  with  all  faults,"  removed  her  from  the  ways  in  which  she  lay,  and  kept 
her  afloat,  in  order  to  conceal  the  fact  that  her  bottom  was  unsound,  it  was  held 
that  the  purchaser  was  entitled  to  rescind  the  sale  on  account  of  the  fraud. 
Baglehole  v.  Walters,  3  Camp.,  1 54 ;  Schneider  v.  Heath,  lb.,  506. 

^  Brown  v.  Montgomery,  20  N.  Y.,  287.         ''  Wright  v.  Brown,  67  N.  Y.,  i. 

'  Nichols  v.  Pinner,  18  N.  Y.,  395.  °  Durell  v.  Haley.  1  Paige  Ch.,  492. 


4IO  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §   299. 

of  an  assignee  for  the  benefit  of  other  creditors,  it  is  such  a 
fraud  as  avoids  the  sale.' 

§  299.  Defence  that  material  facts  were  concealed. — 
Where  a  party  to  a  contract  has  either  intentionally  or  acci- 
dentally concealed  facts  on  which  the  contract  is  based,  he 
cannot  come  into  court  to  enforce  it  against  the  otheV  party." 
Specific  performance  of  a  contract  of  sale  will  not  be  decreed 
where  the  purchaser  at  the  time  of  making  the  bargain  was 
ignorant  of  a  substantial  defect  with  respect  to  the  nature, 
character,  situation,  extent,  or  quality  of  the  estate,  and  in 
regard  to  which  he  was  not  put  upon  inquiry.'  Plaintiff 
purchased  of  defendants  at  auction  a  lot  in  the  city  of  New 
York,  paying  ten  per  cent,  of  the  purchase  price.  Printed 
handbills  were  issued  and  circulated  by  the  defendants, 
prior  to  the  sale,  containing  a  diagram  of  the  lot  represent- 
ing it  to  be  twenty-five  by  one  hundred  feet,  and  its  size 
was  so  stated  in  the  printed  text.  Plaintiff  purchased,  re- 
lying upon  this  handbill,  without  examining  the  lot.  The 
terms  of  the  sale  described  it  as  "  twenty-five  feet  front  and 
rear,  more  or  less,"  The  lot  was  to  be  conveyed  by  war- 
ranty deed  free  of  incumbrance.  A  building  upon  the  ad- 
joining lot  encroached  upon  the  lot,  and  had  stood  there 
for  more  than  twenty-five  years,  which  was  known  to  the 
defendants,  but  no  mention  thereof  was  made  in  the  hand- 
bills, or  in  the  terms  of  sale,  or  at  the  time  of  the  sale. 
Plaintiff  refused  to  complete  the  sale,  and  brought  this 
action  to  recover  the  percentage  paid.  Defendants  set  up 
the  contract,  alleged  a  readiness  and  tender  of  performance, 
and  asked  for  a  specific  performance  on  the  part  of  the 
plaintiff.  It  was  held,  that  plaintiff's  bid  having  been  ob- 
tained by  the  suppression  of  a  material  fact,  defendants 
could  not  enforce  the  purchase ;  that  plaintiff  was  entitled 
both  to  a  title  to  and  the  possession  of  the  whole  lot  ;  not 

'  Lupin  V.  Marie,  2  Paige  Ch.,  169. 

'  Pusey  V.    Desbouvrie,  3  P.  Wins.,  315;  Railton  v.  Mathews,  10  CI.  &  Fin., 
934  ;  Willis  V.  Willis,  17  Sim.,  218  ;  Barksdale  v.  Payne,  Riley  Ch.,  174. 
2  Ellicott  V.  White,  43  Md.,  145. 


§  299<.  CONCEALMENT    OF    MATERIAL    FACTS.  4II 

simply  a  right  of  action  for  its  recovery,  which,  conceding 
the  title  to  be  good,  was  all  that  defendants  could  convey 
as  to  the  part  encroached  upon  ;  and  that  the  insertion  of 
the  words  "  more  or  less  "  in  the  terms  of  sale  did  not,  under 
the  circumstances,  affect  the  rights  of  the  parties/  So, 
where  the  purchaser  files  a  bill  in  equity  to  enforce  a  spe- 
cific performance  of  the  contract  of  sale,  the  court  will  not 
aid  him  if  he  has  intentionally  concealed  a  material  fact  from 
the  vendor,  the  disclosure  of  which  would  have  prevented 
the  making  of  the  agreement,  but  he  will  be  left  to  his 
remedy  at  law.  Although  the  mere  suppression  of  a  ma- 
terial fact  by  one  party,  of  which  he  knew  the  other  was 
ignorant,  be  not  of  itself  sufficient  to  avoid  the  contract  on 
the  ground  of  fraud,  yet  slight  circumstances  in  addition  to 
the  intentional  concealment  of  a  fact,  have  been  deemed 
sufficient  to  constitute  a  fraud  upon  the  other  party."  Com- 
plainant filed  a  bill  for  the  specific  performance  of  a  con- 
tract for  the  sale  of  land.  Defendant  alleged,  by  a  cross 
bill,  that  the  complainant  had  concealed  the  fact  that  there 
was  a  salt  spring  on  the  land  which  was  worth  a  great  deal 
more  than  the  price  agreed  to  be  given,  and  that  the  plain- 
tiff had  failed  to  pay  or  tender  the  consideration,  which  was 
to  have  been  discharged  in  salt.  It  was  held  that  the  bill 
should  have  been  dismissed,  and  the  plaintiff  left  to  his 
remedy  at  law.'  The  purchaser  is  not  bound  to  know  that 
the  description  in  the  contract  and  deed  does  not  embrace 
all  of  the  land  orally  agreed  to  be  sold  ;  and  if  a  portion  of 
the  premises  is  fraudulently  omitted,  and  the  purchaser,  be- 
ing deceived,  accepts  the  deed,  pays  the  purchase  money, 
and  goes  into  possession,  he  may,  notwithstanding  the  stat- 
ute of  frauds,  maintain  a  suit  for  the  specific  performance 
of  the  agreement."  A  person  bought  real  estate  known  as 
"the  Knapp  house  property,"  supposing  that  he  wasobtain- 

»  King  V.  Knapp,  59  N.  Y.,  462.  *  Turner  v.  Harvey,  Jacob,  178. 

^  Bowman  v.  Irons,  2  Bibb.,  78.     And  see  Bowman  v.  Bates,  lb.,  47,  in  which, 
on  a  similar  state  of  facts,  the  contract  of  sale  was  set  aside. 
*  Beardsley  v.  Duntley,  69  N.  Y.,  577.     See  ante,  %  254. 


412  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  3OO. 

ing  the  whole  of  it,  and  the  vendor  was  well  aware  that  the 
vendee  entered  into  the  contract  with  that  understanding. 
The  purchaser  having  discovered,  after  he  had  taken  pos- 
session, that  his  deed  did  not  embrace  the  whole  property, 
filed  a  bill  to  compel  the  vendor  to  convey  the  omitted  por- 
tion, and  it  was  held  that  he  was  entitled  to  the  relief  sought.' 
Where  a  deed  from  a  husband  to  his  wife,  omitted  the  name 
of  the  town  in  which  the  land  conveyed  lay,  and  the  hus- 
band introduced  evidence  to  show  that  he  was  importuned 
to  execute  the  deed,  that  it  was  without  consideration,  and 
that  he  purposely  left  out  the  name  of  the  town,  the  wife 
supposing  that  it  was  correct,  it  was  held  that  a  person 
claiming  under  a  devisee  of  the  wife,  was  entitled  to  have 
the  deed  corrected."  Of  course,  if  the  purchaser  does  an 
act,  or  makes  a  declaration,  for  the  purpose  of  misleading 
the  vendor,  and  preventing  him  from  ascertaining  the  real 
situation  of  the  property,  and  at  the  same  time  conceals 
from  him  a  fact  which  he  knows  to  be  material,  he  is  guilty 
of  a  fraudulent  deception.^  Where  a  person  living  near  land 
which  he  was  desirous  of  purchasing,  and  wnth  the  value  of 
which  he  was  acquainted,  visited  the  owner,  a  clergyman 
residing  in  a  distant  State,  who  knew  very  little  about  the 
property,  by  means  of  letters  of  introduction  won  the  clergy- 
man's confidence,  by  misrepresentations  prevented  his  tak- 
ing time  to  inform  himself,  and,  by  deceiving  him  as  to  the 
real  value  of  the  land,  induced  him  to  enter  into  a  contract 
for  its  sale  for  very  much  less  than  it  was  worth,  a  bill  filed 
by  the  purchaser  for  specific  performance  was  dismissed 
with  costs.* 

§  300.  Fraud  a  ground  of  rescission. — If  a   party  in- 

"  Goodenow  v.  Curtis,  18  Mich.,  298.  "^  Stewart  v.  Brand,  23  Iowa,  477. 

*  Livingston  v.  Peru  Iron  Co.,  2  Paige  Ch.,  390.  It  has  been  held  that  if  a 
man,  having  committed  a  serious  trespass  upon  his  neighbor's  property,  and 
wishing  to  screen  himself  from  the  consequences,  makes  a  proposal  for  the  pur- 
chase of  the  property,  he  is  bound,  before  entering  into  a  contract  with  the  owner, 
to  inform  him  of  the  circumstances  of  the  case.  Phillips  v.  Homfray,  L.  R.  6, 
Ch.  770,  per  the  lord  chancellor. 

*  Swimm  v.  Bush,  23  Mich.,  99. 


§  30I-       RIGHT    OF    PARTY    TO    BE    TOLD    OF    DEFECTS.  4x3 

duces  another  to  enter  into  an  agreement  by  the  fraudulent 
conceahnent  or  perversion  of  material  facts,  the  latter  will 
be  entitled  to  a  rescission  of  the  contract.'  A.  sold  to  B.  the 
lease  of  a  house  without  showing  B.  the  lease,  or  informing 
him  that  it  contained  a  covenant  for  the  termination  of  the 
lease  in  case  of  the  destruction  of  the  premises  by  fire.  The 
house  having  shortly  afterward  been  burned,  the  vendor  was 
enjoined  from  collecting  the  purchase  money,  and  decreed 
to  deliver  up  to  be  cancelled  the  notes  which  had  been  given 
therefor.''  A.,  who  was  the  cashier  of  a  bank,  borrowed  of 
B.  and  C.  four  thousand  one  hundred  dollars,  to  be  repaid 
on  demand,  with  interest ;  and,  as  security,  delivered  to  them 
stock  of  a  fire  insurance  company.  A  few  months  after- 
ward, the  bank  failed,  and  it  was  ascertained  that  A.  was  a 
defaulter  and  insolvent,  he  having  communicated  the  same 
to  the  bank  commissioners.  The  fact  that  A.  was  a  de- 
faulter, was  kept  secret  by  the  bank  commissioners,  in  order 
to  aid  A.  in  securing  his  indebtedness  to  the  bank ;  and  he 
obtained  the  stock  from  B.  and  C,  representing  that  he 
wanted  it  for  a  particular  purpose,  promising  to  replace  it 
by  other  security,  his  real  object  being  to  provide  for  the 
bank  debt  and  avoid  public  exposure.  He  thereupon  im- 
mediately transferred  the  stock  to  the  bank,  and  it  was 
placed  by  the  bank  among  its  papers  and  securities.  It  was 
held  that  as  the  stock  was  fraudulently  procured  from  B. 
and  C,  it  must  be  restored  to  them.^ 

§  301.  Right  of  party  to  be  told  of  defects. — The  rule 
that  when  a  purchaser  has  examined  property  containing 
defects  which  can  be  discovered  by  ordinary  vigilance,  he  is 
not  entitled  to  relief  on  account  of  such  defects,  does  not 
apply  when  fraudulent  means  have  been  employed  to  con- 
ceal the  defects.  The  obligation  to  communicate  facts 
ceases  when  each  party  has  an  opportunity  of  examining 

'  Pollard  V.  Rogers,  4  Call,  239. 

'  Snelson  v.  Franklin,  6  Munf.,  210.     See  M'Niel  v.  Baird,  lb.,  316. 

'  Rawdon  v.  Blatchlbrd,  i  Sandf.  Ch.,  344. 


414  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  302. 

for  himself,  and  undertakes  to  do  so,  without  relying  on 
the  statements  of  the  other.  But  it  is  not  the  mere 
opportunity  to  examine  which  relieves  the  other  party 
from  the  duty  to  disclose.  For  although  the  opportunity 
exist,  yet  if  the  purchaser  is  led  to  repose  confidence  in  the 
vendor,  and  does  not  examine  for  himself,  the  duty  to  dis- 
close defects  is  equally  obligatory,  and  the  vendor  will  be 
held  bound  for  all  statements  and  all  undue  concealments.' 
§  302.  Purchaser  need  not  give  vendor  information. — 
Notwithstanding  it  is  the  duty  of  the  vendor  to  communi- 
cate to  the  purchaser  any  circumstance  which  diminishes 
the  value  of  the  property,  the  purchaser  is  not  bound  to 
announce  what  may  increase  its  value.  If,  for  instance,  the 
purchaser  knows  that  there  is  a  mine  in  the  land  of  which 
the  vendor  is  ignorant,  he  is  not  bound  to  apprise  him  of 
the  fact.'  Where  a  first  mortgagee  with  power  of  sale, 
arranged  for  the  advantageous  disposal  of  part  of  the  mort- 
gaged property,  and  then  purchased  at  a  reduced  price  the 
interest  of  the  second  mortgagee,  without  acquainting  him 
with  his  arrangement  for  sale,  a  bill  filed  by  the  second 
mortgagee  to  set  aside  the  sale  on  the  ground  of  conceal- 
ment by  the  purchaser,  was  dismissed.^  Although  an 
action  for  deceit  cannot  be  maintained  against  the  pur- 
chaser, for  misrepresenting  the  vendor's  chance  of  sale,  or 
of  obtaining  a  better  price  than  that  offered  ; '  yet,  in  equity, 
the  purchaser  must  not  let  drop  a  single  word  to  mislead 
the  vendor,  or  go  beyond  silence.'  Where  a  solicitor,  in 
buying  of  a  person  in  embarrassed  circumstances,  who 
acted  without  professional  advice,  falsely  represented  that 
the  nature  and  title  of  the  property  were  such  that  no  one 

'Hall  V.  Thompson,  i  Sm.  &  Marsh,  443,  per  Sharkey,  J. 

'  Fox  V.  Mackreth,  2  Bro.  C.  C,  400,  420 ;  Wilde  v.  Gibson,  i  House  of  Lds., 
605  ;  Walters  v.  Morgan.  3  De  G.  F.  &  J.,  723  ;  Laidlavv  v.  Organ,  2  Wheat.,  i'-8  ; 
Perkins  v.  McGavock,  Cooke,  415;  Livingston  v.  Peru  Iron  Co.,  2  Paige  Ch., 
390  ;  Smith  v.  Beatty,  2  Ired.  Eq.,  456  ;  Harris  v.  Tyson,  24  Pa.  St.,  347  ;  But- 
ler's Appeal,  26  lb.,  63. 

^  Dolman  v.  Nokes,  22  Beav.,  402.  ■*  Vernon  v.  Keys,  12  East.,  632. 

'  Turner  v.  Harvey,  Jac,  169,  178  ;  Davies  v.  Cooper,  5  My.  &  Cr.,  270. 


§§  3^3>   304-       SHOWN    THAT    STATEMENT    WAS    FALSE.  4T5 

but  a  professional  man  would  purchase  it,  a  decree  for  spe- 
cific performance  was  refused/ 

§  303.  Conditio7is  on  ivhich  false  statement  relieved 
against. — A  representation,  to  be  a  ground  for  the  inter- 
position of  the  court  in  behalf  of  the  party  alleged  to  have 
been  injured  by  it,  ought  first  to  be  shown  to  be  untrue  ; 
second,  the  party  making  the  representation,  should  have 
had  no  knowledge  of  the  truth  of  the  statement ;  third, 
the  false  statement  ought  to  have  been  made  to  induce  the 
other  party  to  enter  into  the  contract ;  fourth,  the  party  to 
whom  the  statement  was  made,  must  have  relied  on  it ; 
fifth,  the  misrepresentation  must  have  made  the  contract 
unconscionable. 

§  304.  Must  be  shown  that  statement  was  false. — The 
representation  must  be  of  matter  of  fact,  and  not  of  a  mat- 
ter of  law,  opinion,  judgment,  or  mere  intention  ;  unless 
the  expression  of  opinion  constitutes  a  warranty,  or  that  of 
intention  a  contract ;  or  unless  in  dealing  with  another,  an 
unconscionable  advantage  is  taken  of  his  ignorance  of  his 
legal  rights.'  Whether  the  misrepresentation  be  claimed 
to  have  been  made  by  means  of  a  verbal  or  written  state- 
ment, it  must,  of  course,  be  shown  that  the  statement  was 
actually  untrue,  otherwise  there  could  have  been  no  mis- 
representation. While  the  same  evidence  of  misrepresenta- 
tion is  required  in  proceedings  at  law,  and  for  setting  aside 
a  contract  in  equity,  somewhat  less  will  be  deemed  a  suffi- 
cient defence  to  a  suit  for  specific  performance.  A  state- 
ment, as  we  have  seen,  may  be  false,  without  any  positive 
assertion,  by  the  intentional  withholding  of  facts,  and 
thereby  producing  an  erroneous  impression.'  A  representa- 
tion, though  literally  true,  by  being  calculated  to  mislead 

'  Davis  V.  Abraham,  Week.  Rep.,  1856-1857,  465.  See  Masterton  v.  Beers,  I 
Sweeney,  406 ;  Byard  v.  Holmes,  5  Vroom,  297. 

'  Adam's  Equity,  176  ;  Kerr  on  Fraud  and  Mistake,  90  ;  Leake  on  Con.,  182  ; 
Curry  V.  Kejser,  30  Ind„  214;  Townsend  v.  Coales,  31  Ala.,  428;  Colter  v. 
Morgan,  12  B.  Mon.,  278  ;  post,  §  314. 

^  Brandling-  v.  Plummer,  2  Drew,  430 ;  Pope  v.  Garland,  4  Y.  &  C.  Ex.,  401  ; 
Spunner  v.  Walsh,  10  Ir.  Eq.,  386  ;  ante,  §  298. 


41 6  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.        §  305. 

the  person  to  whom  it  is  made,  may  be  in  substance  a  mis- 
representation/ As  where  it  is  asserted  that  there  is  an 
abundant  supply  of  water  on  the  property,  w^hen,  in  fact, 
the  property,  though  well  supplied  with  water,  derives  its 
supply  from  the  water-works  of  a  town/  If  one  of  several 
representations,  all  more  or  less  likely  to  make  an  impres- 
sion, is  false,  it  vitiates  the  entire  transaction  ;  as  it  is  im- 
possible to  say  that  the  untrue  statement  may  not  have  had 
a  controlling  influence  in  determining  the  line  of  conduct 
of  the  party  to  whom  it  is  addressed/ 

§  305.  Stating  what  was  not  ktiown  to  be  false. — When 
a  vendor,  intending  to  deceive,  asserts  something  material 
as  a  fact  of  which  he  has  no  knowledge,  w^hich  alleged  fact 
has  no  existence,  and  the  vendee  is  induced  by  the  false 
assertion  to  make  the  purchase,  the  representation  is  in  a 
legal  sense  fraudulent/  So,  if  a  representation  be  made  of 
a  matter  material  to  the  contract,  which  is  untrue,  to  the 
damage  of  the  other  party,  who  relies  on  it,  such  representa- 
tion will  have  the  force  and  effect  of  positive  fraud  in  a 
proceeding  to  rescind  the  contract,  or  in  an  action  for,  or  de- 
fence founded  on  the  fraud,  whether  the  falsity  of  the  rep- 

'  Kerr  on  Fraud  and  Mistake,  92.  And  see  Edwai'ds  v.  Wickwar,  L.  R.  t, 
Eq.  68;  Ross  v.  Estates  Investment  Co.,  3  lb.,  135  ;  Colby  v.  Gadsden,  15  W. 
R,  1 185;  Chester  v,  Spargo,  16  lb.,  576;  Legge  v.  Croker,  i  Ba.  &  Be.,  506; 
New  Brunswick,  etc.,  R.R.  Co.  v.  Conybeare,  9  House  of  Lds.,  711.  In  Dog- 
gett  V.  Emerson,  3  Story,  733,  Story,  J.,  said  :  "  It  is  equally  promotive  of  sound 
morals,  fair  dealing,  and  public  justice  and  policy,  that  a  vendor  should  distinctly 
comprehend,  not  only  that  good  faith  should  reign  over  all  his  coi.duct  in  rela- 
tion to  the  sale,  but  that  there  should  be  the  most  scrupulous  good  faith,  an  ex- 
alted honesty,  or,  as  it  is  often  felicitously  expressed,  uberrima  fides,  in  every 
representation  made  by  him  as  an  inducement  to  the  sale.  He  should  literally 
in  his  representation  tell  the  truth,  the  whole  truth,  and  nothing  but  the  truth. 
If  his  representation  is  false  in  any  one  substantial  circumstance  going  to  the 
inducement  or  essence  of  the  bargain,  and  the  vendee  is  thereby  misled,  the  sale 
is  voidable,  and  it  is  usually  immaterial  whether  the  representation  be  wilfully 
and  designedly  false,  or  ignorantly  or  negligently  untrue.  The  vendor  acts  at 
his  peril,  and  is  bound  by  every  syllable  he  utters  or  proclaims,  or  knowingly 
impresses  upon  the  vendee,  as  a  lure  or  decisive  motive  for  the  bargain."  See 
Hough  V.  Richardson,  3  Story,  659. 

*  Leyland  v.  lllingworth,  2  De  G.  F.  &  J.,  253. 

^  Reynell  v.  Sprye,  i  De  G.  M.  &  G.,  708  ;  Jennings  v.  Broughton,  5  lb.,  126  ; 
Clarke  v.  Dickson,  6  C.  B.  N.  S.,  453;  Smith  v.  Kay,  7  House  of  Lds.,  750, 
775- 

*  Indianapolis,  etc.,  R.R.  Co.  v.  Tyng,  63  N.  Y.,  653;  S.  C.  2  Hun.,  311. 


§  305-        STATING    WHAT    WAS    KNOWN    TO    BE    FALSE.  417 

resentation  w^as  known  to  the  party  making  it  or  not,  on 
the  ground  that  he  who  makes  a  representation  as  true, 
without  knowing  whether  it  is  true  or  false,  is  guilty  of 
gross  negligence  and  recklessness,  for  which  he  is  respon- 
sible, if  he  thereby  misleads  the  other  party/  For  it  is  a 
wrong  for  a  person  to  assert  as  true  what  he  does  not  know 
to  be  true,  even  though  he  does  not  know  it  to  be  false,  but 
believes,  on  insufficient  grounds,  that  the  statement  will  ul- 
timately turn  out  to  be  correct/  It  has  accordingly  been 
held  that  if  a  mortgage  be  obtained  by  misrepresentation, 
although  the  mortgagee  does  not  know  that  the  statement 
is  false,  yet  if  he  undertake  to  state  that  it  is  true  without 
a  knowledge  of  its  truth  or  falsity,  and  it  deceives  the  party 
to  whom  it  is  made,  and  induces  him  to  give  the  mortgage, 
it  will  avoid  it."  The  gist  of  the  inquiry  is,  not  whether 
the  party  making  the  statement  knew  it  to  be  false,  but 
whether  the  assertion  uttered  as  true  was  believed  by  the 
party  to  whom  it  was  made  to  be  true,  and,  if  false,  de- 
ceived him  to  his  injury.  The  consequences  of  an  inno- 
cent misrepresentation,  if  there  can  be  such  a  thing,  must 
fall  on  him  who  was  the  author  of  it,  on  the  principle  that 
the  acts  of  even  an  innocent  man  shall  prejudice  him, 
rather  than   a  stranger  equally  innocent.'     Where  a  pur- 


'  Pulsford  V.  Richards,  17  Beav.,  87  ;  Hunt  v.  Moore,  2  Pa.  St.,  105  ;  Reese  v. 
Wyman,  9  Ga.,  439;  Smith  v.  Richards,  13  Pet.,  26;  Hough  v.  Richardson,  3 
Story,  659;  Taymen  v.  Mitchell,  i  Md.  Ch.,496;  Lewis  v.  McLemore,  10  Yerg., 
206 ;  York  v.  Gregg,  9  Texas,  85  ;  TurnbuU  v.  Gadsden,  2  Strobh.  Eq.,  14  ; 
Thompson  v.  Lee,  31  Ala.,  292;  Oswald  v.  McGehee,  28  Miss.,  340;  Bennett  v. 
Judson,  21  N.  Y.,  238;  Frenzel  v.  Miller,  yj  Ind.,  i  ;  Elder  v.  Allison,  45  Ga., 
13;  Phillips  V.  HolHster,  2  Coldw.,  269;  Beebe  v.  Young,  14  Mich.,  136;  Gunby 
V.  Sluter,  44  Md.,  237.     But  s&&post,  §  307. 

-Kerr  on  P  raud  and  Mistake,  54,  55;  Harding  v.  Randall,  15  Me.,  332;  Bu- 
ford  V.  Caldwell,  3  Mo.,  477;  Hazard  v.  Irwin,  18  Pick.,  95;  Stone  v.  Denny,  4 
Mete,  151  ;  Smout  v.  Ilbery,  10  M.  &  W.,  10. 

'  Joice  V.  Taylor,  6  Gill  &  Johns,  54. 

^  Tyson  v.  Passmore,  2  Pa.  St.,  122,  per  Gibson,  Ch.  J.  Where  the  purchaser 
has  no  knowledge  of  the  fraud  until  several  years  after  the  transaction,  lapse  of 
time  is  not  a  bar  to  the  suit.  Doggett  v.  Emerson,  3  Story,  700.  A  fraud  may 
be  perpetrated  as  well  by  the  assertion  of  facts  that  do  not  exist,  ignorantly  made 
by  one  whom  the  person  acting  upon  the  assertion  has  the  right  to  suppose  has 
used  reasonable  diligence  to  inform  himself,  as  by  concealing  facts  known  to  ex- 
ist, which,  in  equity  and  good  conscience,  ought  to  be  made  known.     Graves  v. 

27 


41 8  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.        §  306. 

chaser  at  an  execution  sale  was  induced  to  buy  upon  the 
representation  of  the  judgment  debtor  that  certain  land 
was  included  in  the  levy,  which  in  fact  was  not,  it  was  held 
that  the  land  passed  in  equity  by  the  sale,  and  that  a  con- 
veyance would  be  decreed  whether  the  misrepresentation 
proceeded  from  design  or  a  misapprehension  of  the  facts.' 
The  rule  that  where  a  party  to  a  contract  in  making  a  false 
representation  is  honestly  mistaken,  there  is  no  ingredient 
of  fraud  in  the  case,  does  not  permit  one  to  make  false 
statements  recklessly,  or  without  some  grounds  for  belief  in 
them.  Before  a  person  positively  affirms  the  existence  of 
a  fact,  he  must  proceed  upon  reasonable  inquiry,  and  have 
apparently  some  good  reason  for  his  affirmation.  In  equity 
the  right  to  relief  is  derived  from  the  suppression  or  mis- 
representation of  a  material  fact,  though  there  be  no  intent 
to  defraud.  This  doctrine  is,  however,  substantially 
grounded  in  fraud,  since  the  misrepresentation  operates 
as  a  surprise  and  imposition  upon  the  other  party  to  the 
contract ;  and  it  is  inequitable  for  a  person  to  insist  on  en- 
joying the  benefit  of  an  agreement  obtained  by  him 
through  a  misrepresentation,  however  innocently  made.' 

§  306.  Deception  by  agent. — If  an  agent  effects  a  sale 
of  land  by  means  of  false  representations  or  other  fraud, 
although  without  authority  from  his  principal,  and  although 
the  principal  was  ignorant  that  he  had  done  so,  the  legal 
accountability  of  the  principal  is  the  same  it  would  have 
been  had  he  made  the  false  representations  or  committed 
the  fraudulent  acts  in  person.'     For  it  is  contrary  to  natural 

Lebanon  Nat.  Bank,  10  Bush,  Ky.,  23.  A  misrepresentation  of  the  law  by  a 
brother-in-law  to  his  sister,  by  which  she  is  led  to  believe  her  title  to  property 
held  by  her  is  invalid,  and  for  this  reason  she  sells  it  to  him,  which  sale  is  much 
to  his  advantage,  vitiates  the  sale  at  her  election,  even  though  such  misrepre- 
sentation was  made  in  good  faith.     Sims  v.  Ferrill,  45  Ga.,  585. 

'  Buchanan  v.  Moore,  10  Serg.  &  Rawle,  304. 

^  Smith  V.  Reese  River  Co.,  L.  R.  2,  Eq.  264;  Marsh  v.  Falker,  40  N.  Y.,  566 ; 
Wakeman  v.  Dalley,  51  lb.,  27;  Hawkins  v.  Palmer,  57  lb.,  664;  Hammond  v. 
Pennock,  lb.,  145;  Story's  Eq.  Juris.,  Sec.  193;  Perry  on  Trusts,  Sec.  171. 

3  New  Brunswick,  etc.,  R.R.  Co.  v.  Conybeare,  9  House  of  Lds.,  714,  726; 
Barwick  v.  English  Joint  Stock  Bank,  L.  R.  2,  Exch.  265  ;  Udell  v.  Atherton,  7 
H.  &  N.,  184;  National  Exch.  Co.  v.  Drew,  2  MacQ.,  103  ;  Bartlett  v.  Salmon, 


§  307-  UNCONSCIOUS    MISREPRESENTATION.  419 

justice  to  permit  a  person  to  retain  an  advantage  acquired 
by  the  false  representations  of  his  agent,  although  he  was 
not  a  party  to  them.  So,  if  the  owner  of  the  land  knew, 
when  he  made  the  sale,  that  the  vendee  was  induced  to  buy 
by  the  false  representations  of  a  third  person,  and  did  not 
inform  the  vendee  that  the  representations  were  false,  he  is 
in  like  manner  responsible  for  the  fraud,  though  such  third 
person  was  not  his  agent.  But  if  the  third  person  was  not 
the  agent  of  the  vendor  in  negotiating  the  sale,  and  the 
vendor  made  no  false  representations  in  respect  to  the 
property,  and  did  not  know  that  the  third  person  had  done 
so,  he  may  assert  his  rights  under  the  contract  of  sale  after 
parting  with  a  valuable  consideration,  to  wit,  a  conveyance 
of  the  property,  although  subsequent  thereto  he  was  in- 
formed of  the  false  representations.'  Partners  are  bound 
by  the  false  and  fraudulent  representations  of  one  of  them 
while  acting  within  the  scope  of  his  authority,  made  with 
reference  to  the  business  of  the  firm.'  The  rule  is  the 
same  as  to  the  responsibility  of  corporations  for  the  acts  of 
their  agents  within  the  scope  of  their  authority.'  Although 
an  agent  be  not  acting  within  the  scope  of  his  authority,  if 
the  principal  suffers  a  person  to  expend  money  under  the 
belief  that  the  representations  of  the  agent  are  authorized 
by  the  principal,  a  court  of  equity  will  not  afterward  permit 
the  principal  to  set  up  want  of  authority  of  the  agent." 

§  307.  Where  party  making  representation  had  reason 
to  suppose  it  to  be  true. — In  an  action  at  law  for  deceit,  or 
in  defence  to  an  action  at  law  on  a  contract,  and  in  a  suit 

6  DeG.  M.  &  G.,  39  ;  V^heelton  v.  Hardisty,  8  E,  &  B.,  270  ;  Bristow  v.  Whit- 
more,  9  House  of  Lds.,  418  ;  Fitzsimmons  v.  Joslin,  21  Vt.,  129  ;  Crump  v.  U. 
S.  Mining  Co.,  7  Gratt.,  352;  Henderson  v.  R.R.  Co.,  17  Texas,  560;  Hough 
V.  Richardson,  3  Story,  689  ;  Comfoot  v.  Fowke,  6  M.  &  W.,  358,  contra. 

^  Law  V.  Grant,  27  Wis.,  548  ;  Lindsay  v.  Veasy,  62  Ala.,  421. 

2  Wickham  v.  Wickham,  2  K.  &  J.,  478  ;  Loveil  v.  Hicks,  2  Y.  &  C.  Ex.,  46, 
481  ;  Rapp  V.  Latham,  2  B.  &  Aid.,  795  ;  Blair  v.  Bromley,  5  Hare,  557. 

^  Burnes  v.  Pennell,  2  House  of  Lds.,  497  ;  Ranger  v.  Gt.  Western  R.R.  Co., 
51b.,  86;  National  Exch.  Co.  v.  Drew,  2  MacQ.,  125;  Custar  v.  Titusville 
Water  &  Gas  Co.,  63  Pa.  St.,  381.     But  see  Brockwell's  Case,  4  Drew,  205. 

^  Kerr  on  Fraud  and  Mistake,  117,  referring  to  Ramsden  v.  Dyson,  L.  R.  I, 
Ch.  129,  per  Lord  Cranworth. 


420  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  308. 

in  equity  for  the  rescission  of  the  contract,  although  the 
statement  is  false,  there  will  be  no  such  fraud  as  will  induce 
the  court  to  interfere,  if  the  person  making  it  honestly  be- 
Heved,  upon  reasonable  grounds,  that  his  assertion  was 
true  ;  unless  there  is  a  duty  cast  on  him  to  know  the  truth, 
or  the  subject  matter  of  the  contract  is  so  different  from 
what  it  was  represented  to  be,  as  to  constitute  a  failure  of 
consideration.'  But  if  he  afterward  ascertain  that  the 
statement  was  untrue,  he  must  correct  the  error,  or  it  will 
become,  in  the  contemplation  of  a  court  of  equity,  a  fraud- 
ulent misrepresentation.' 

§  308.  False  statement  made  ignorantly. — It  is  a  defence 
to  a  suit  for  specific  performance,  that  the  plaintiff  was 
guilty  of  a  misrepresentation  of  a  material  fact,  although 
innocently  made  ;  for  a  person  who  seeks  the  enforcement 
of  his  contract,  ought  not  only  not  to  know  that  his  state- 
ments with  reference  to  the  subject  matter  of  it  are  false, 
but  he  ought  to  know  that  they  are  true.'  It  was  accord- 
ingly held  that  specific  performance  would  not  be  decreed 
of  a  contract  for  the  sale  of  land,  where  the  sole  induce- 
ment of  the  vendee  to  purchase  was  the  representation  of 
the  vendor  that  there  was  abundance  of  iron  ore  on  the 
land,  when,  in  fact,  the  mine  was  not  worth  working,  al- 
though the  vendor  did  not  know  that  the  mine  was  worth- 
less at  the  time  of  the  sale,  and  the  vendee  agreed  to  take 
the  risk  of  the  value  of  the  mine.*     It  should  be  borne  in 

^  Early  v.  Garret,  9  B.  &  C,  928 ;  Freeman  v.  Baker,  5  B.  &  Ad.,  797  ;  Moens 
V.  Heyworth,  10  M.  &  W.,  147  ;  Havcraft  v.  Creasy,  2  East.,  92  ;  Collins  v. 
Evans,  5  Q.  B.,  820;  Thom  v.  Bigland,  8  Exch.,  726;  Ormrod  v.  Huth,  14  M. 
&  W.,  651  ;  Bartiett  v.  Salmon,  6  De  G.  M.  &  G.,  33;  Burrowes  v.  Lock,  10 
Yes.,  470;  Brooks  v.  Hamilton,  15  Minn.,  26  ;  Meyer  v.  Amidon,  45  N.  Y.,  169; 
Oberlander  v.  Spiess,  lb.,  175  ;  Stitt  v.  Little,  63  lb.,  427. 

-  Reynell  v.  Sprye,  i  De  G.  M.  &  G.,  660.  And  see  Traill  v.  Baring,  33  L. 
J.  Ch.,  521. 

*  Ainslie  v.  Medlycott,  9  Yes.,  13,  21  ;  Wall  v.  Stubbs,  i  Mad.,  80;  Stewart 
V.  Alliston,  I  Mer.,  26  ;  Higgins  v.  Samels,  2  J.  &  H.,  /160 ;  Price  v.  Macaulay, 
2  De  G.  M.  &  G.,  339;  Hume  v.  Pocock,  L.  R.  i,  Ch.  379;  Laight  v.  Pell,  i 
Edw.  Ch.,  577  ;  Swimm  v.  Bush,  23  Mich.,  99 ;  Holme's  Appeal,  ']'j  Pa.  St.,  50. 
See  Denny  v.  Hancock,  L.  R.  6,  Ch.  i  ;  Upperton  v.  Nickolson,  lb.,  436  ;  10  lb., 
228  ;  Powell  V.  Elliott,  10  lb.,  424 ;  Harnett  v.  Baker,  L.  R.  20,  Eq.  50. 

*  Fisher  v.  Worrall,  5  Watts  &  Serg.,  478. 


§  308.  PALSE    STATEMENT    MADE    IGNORANTLY.  42 1 

mind  that  specific  performance  is  in  the  discretion  of  the 
court  in  view  of  all  the  circumstances  of  the  case,  and  that 
it  does  not  follow  that  because  a  contract  is  good  at  law  it 
will  therefore  be  enforced  in  equity,  or  that  a  court  of  equity 
will  decree  the  specific  performance  of  every  contract  which 
it  will  not  set  aside.  Equity  will  often  refuse  to  interfere 
w^here  the  contract  is  perfectly  valid  and  binding  at  law, 
and  leave  the  parties  to  their  legal  rights/  A  court  of 
equity  will  not  specifically  enforce  a  contract  unless  satisfied 
as  to  the  fairness  and  good  faith  of  the  party  seeking  its 
assistance.'  The  effect  of  the  misrepresentation  of  a  por- 
tion of  the  subject  of  the  contract,  is  not  to  modify  the 
contract  pro  taiito,  but  to  destroy  it  wholly  so  far  as  the 
right  of  the  party  making  the  misstatement  to  enforce  it  is 
concerned.'  Although  the  misrepresentation  was  made  by 
the  plaintiff  in  consequence  of  information  which  was 
equally  accessible  to  the  other  party,  yet  if  the  error  could 
not  easily  have  been  discovered  by  the  latter,  it  will  consti- 
tute a  defence  to  a  suit  for  specific  performance,"  But  a 
contract  of  sale  may  be  specifically  enforced  notwithstand- 
ing an  erroneous  description  of  the  property,  if  the  vendee, 
at  the  time  of  the  purchase,  was  aware  of  the  fact,  or 
viewed  the  property  previous  to  buying,  or  the  circum- 
stances were  such  that  it  was  the  duty  of  the  vendee  to  ex-, 
amine    for   himself.'     So,   where   a   misrepresentation    has 

'  Radcliffe  v.  Warrington,  12  Ves.,  331  ;  Watson  v.  Marston,  4  De  G.  M.  & 
G ,  230  ;  Falcke  v.  Gray,  4  Drew,  659 ;  Vigers  v.  Pike,  8  CI.  &  Fin.,  645  ;  Raw- 
lins V.  Wickham,  3  De  G.  &  ].,  322 ;  Wilde  v.  Gibson,  i  House  of  Lds.,  607  ; 
Myers  v.  Watson,  i  Sim.  N.  S.,  529  ;  Pratt  v.  Carroll,  8  Cranch,  471  ;  King  v. 
Hamilton,  4  Pet.,  311;  Clitherall  v.  Ogilvie,  i  Dessaus  Eq.,  256;  Eastland  v. 
Vanarsdale,  3  Bibb.,  274  ;  Perkins  v.  Wright,  3  Har.  &  McHen.,  324 ;  Reinicker 
V.  Smith,  2  Har.  &  Johns,  421  ;  Rice  v.  Rawlings,  Meigs,  496;  Leigh  v.  Crump, 
I  Ired  Eq.,  299. 

-  Walters  v.  Morgan,  3  De  G.  F.  &  J.,  718  ;  Cox  v.  Middleton,  2  Drew,  220  : 
Brealey  v.  Collins,  You.,  327. 

'^  Viscount  Clermont  v.  Tasburgh,  i  J.  &  W.,  119,  I2g  ;  Rawlins  v.  Wickham, 
3  De  G.  &  J.,  321. 

^  Harris  v.  Kemble,  7  L.  J.  Ch.,  85  ;  5  Bligh,  N.  S..  730. 

^  Dyer  v.  Hargrave,  10  Yes.,  505  ;  Lord  Brooke  v.  Roundthwaite,  5  Hare, 
306  ;  Haywood  v.  Cope,  25  Beav.,  140 ;  Henderson  v.  Hudson,  15  W.  R.,  860  ; 
Kerr  on  Fraud  and  Mistake,  359. 


42  2  MISREPRESENTATION,    FRAUD,    OK    MISTAKE.         §   309. 

been  made  unintentionally,  and  the  subject  of  the  contract 
substantially  answers  the  description,  specific  performance 
will  be  decreed  with  compensation  for  the  variation  ; '  or 
the  contract  will  be  enforced  upon  the  terms  of  the  plain- 
tiff making  good  his  representation,  if  that  can  be  done." 

§  309.  False  statement  must  relate  to  contract.  —  The 
misrepresentation  must  have  been  made  with  reference  to 
the  transaction  in  question,  and  for  the  purpose  of  inducing 
the  party  to  whom  it  is  made,  to  enter  into  it ;  and  not 
relative  to  some  collateral  matter,  or  other  dealing,  between 
the  parties.'  It  must  in  general  have  been  made  at  the 
time  of  the  negotiation.'  If  made  some  time  previous  to 
the  transaction,  it  will  not  be  sufficient,  unless  proved  to 
have  been  immediately  connected  with  it.'  A  joint  stock 
company  m  embarrassed  circumstances  had  published  ex- 
aggerated reports  of  its  condition  ;  and  soon  after  the  last 
of  these  reports,  in  order  to  prevent  the  fall  of  its  stock  in 
the  market,  and  to  counteract  unfavorable  rumors,  the  com- 
pany, through   its  manager,  urged  the  defendants  to  buy 

'  Rowland  v.  Norris,  i  Cox,  61  ;  Magennis  v.  Fallon,  2  Moll.,  588. 

-  Howland  v.  Norris,  supra;  Hill  v.  Buckley,  17  Ves.,  395;  Pulsford  v. 
Richards,  17  Beav.,  87,  96. 

^  Harris  v.  Kemble,  i  Sim.,  122,  overruled,  but  not  as  to  the  principle,  S.  C,  5 
Bligh  N.  S.,  730;  Attwood  v.  Small,  6  CI.  &  Fin.,  232,  445  ;  Jameson  v.  Stein, 
21  Beav.,  5  ;  Denne  v.  Light,  8  De  G.  M.  &  G.,  774;  Queen  v.  Sadler's  Co.,  10 
House  of  Lds.,  404.  The  vendor  of  a  house  and  lot,  worth  about  fourteen 
thousand  dollars,  agreed  in  writing  to  take  eight  hundred  dollars  of  the  purchase 
money  in  stock  of  certain  machine  works  at  par,  relying  on  the  representation 
of  the  vendee  that  the  stock  was  worth  par,  when,  in  fact,  it  was  worth  only  ten 
cents  on  the  dollar,  which  was  not  then  known  to  the  public,  or  to  the  directors. 
In  the  absence  of  fraudulent  intent  on  the  part  of  the  vendee,  it  was  held  that  he 
was  entitled  to  specific  performance.  Powers  v.  Mayo,  97  Mass.,  180.  A  mar- 
ried woman,  after  having  executed  a  mortgage  in  apparent  conformity  with  all 
the  requirements  of  the  law,  will  not  be  entitled  to  have  the  same  set  aside  on 
the  sole  testimony  of  her  and  her  son,  a  boy  between  ten  and  eleven  years  of 
age,  as  to  the  alleged  misrepresentations  made  to  her  by  her  husband  and  the 
notary  relative  to  the  contents  of  the  deed,  to  which  representations  the  mortga- 
gee was  in  no  wise  prixy.  Spurgin  v.  Trant,  65  111.,  170.  "  Even  were  the 
proof  of  such  misrepresentations  undoubted,  and  were  there  no  evidence  of  lack 
of  diligence  in  obtaining  knowledge  of  the  contents  of  the  mortgage,  we  should 
have  hesitated  long  before  relieving  against  and  annulling  it  in  such  a  case." 
lb.,  per  Sheldon,  J. 

*  Harris  v.  Kemble,  supra. 

*  Smith  v.  Kay,  7  House  of  Lds.,  750 ;  Hotsom  v.  Browne,  9  C.  B.  N.  S.,  445  ; 
Wheelton  v.  Hardisty,  26  L.  J.  Q.  B.,  265. 


§  3IO.  NEED  NOT  HAVE  BEEN  A  WRONGFUL  INTENT.  423 

additional  stock,  stating  that  the  company  would  advance 
the  necessary  funds,  and  that  the  stock  would  be  held  until 
it  could  be  sold  at  a  profit,  without  the  defendants  being 
called  on  to  pay  anything.  The  stock  having  become 
worthless,  the  company  sued  for  the  money  advanced,  to 
which  the  defendants  pleaded  the  fraud  of  the  company. 
To  this  plea  it  was  objected,  among  other  things,  that  the 
loan  and  the  purchase  were  independent  transactions,  and 
that  the  alleged  misrepresentations  in  the  purchase  did  not 
vitiate  the  loan.  The  defence  was,  however,  sustained ; 
Lord  Cranworth  holding  that  the  transaction  did  not  con- 
stitute a  loan,  in  the  ordinary  sense,  but  a  special  contract 
of  the  company  to  purchase  for  the  defendants,  to  be  repaid 
only  in  a  particular  manner  ;  and  Lord  St.  Leonards  put- 
ting it  on  the  ground  that  the  purchase  and  loan  were  a 
single  transaction,  though  consisting  of  two  parts,  since  if 
there  had  been  no  loan,  there  would  have  been  no  purchase, 
and  if  there  had  been  no  purchase,  there  would  have  been 
no  loan.' 

§  310.  Need  not  have  been  a  wrojigful  intent. — For  a 
false  statement  to  operate  as  a  misrepresentation,  it  is  not 
necessary  that  it  should  have  been  made  from  a  corrupt 
motive  of  gain,  or  with  the  intent  to  injure  the  person  to 
whom  it  is  made.  If  a  person  states  what  he  knows  to  be 
false,  or  what  he  has  no  reasonable  ground  to  believe  to  be 
true,  in  order  to  influence  the  course  of  another,  who  acts 
upon  the  statement  to  his  injury,  the  law  imputes  to  him  a 
fraudulent  intent,  although  he  may  not  have  been  in  fact 
governed  by  a  wrongful  design.  A  fraudulent  intent,  in 
the  eye  of  the  law,  does  not  necessarily  depend  upon  dis- 
honesty of  purpose  in  making  the  representation.'  Thus, 
w^here  a  person  without  authority  accepted  a  bill  as  the 

1  National  Exchange  Co.  v.  Drew,  2  M'Q.,  103. 

-  Foster  v.  Charles,  7  Bing.,  107  ;  Murray  v.  Mann,  2  E\ch.,  541  ;  Gibson  v. 
D'Este,  2  Y.  &  C.  C.  C,  542  ;  Wilde  v.  Gibson,  i  House  of  Lds.,  605  ;  Elliott  v. 
Boaz,  9  Ala.,  772;  Page  v.  Bent,  2  Mete,  371  ;  Collins  v.  Dennison,  12  lb.,  549  ; 
ante,  §  293. 


424  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  31I. 

pretended  agent  of  the  drawee  in  his  absence,  believing 
that  the  drawee  would  have  accepted  it,  and  without  any 
fraud  in  fact,  he  was  held  liable  as  for  a  fraud  in  law  ;  since 
he  had  been  guilty  of  misrepresentation  knowing  it  to  be 
such,  in  a  manner  calculated  to  cause  another  to  act  on  the 
faith  of  it  to  his  injury,  and  the  damage  had  actually  oc- 
curred/ 

§  311.  False  statement  must  have  been  relied  on. — A 
misrepresentation,  to  be  a  ground  for  relief  in  equity,  must 
not  only  have  been  in  relation  to  a  material  fact  constitut- 
ing the  basis  of  the  agreement,  but  the  party  to  whom  the 
misrepresentation  was  made,  must  have  entered  into  the 
contract  on  the  faith  and  credit  of  it.'  At  least  he  must 
have  so  far  relied  on  the  statement  as  that  it  is  reasonable 
to  suppose  that  he  would  not  have  made  the  agreement  if 
the  representation  had  not  been  made,  or  not  on  the  same 
terms.'  Lord  Brougham,  in  a  suit  to  set  aside  a  contract, 
stated  the  rule,  as  derived  from  the  earlier  decisions,  thus  : 
"What  inference  do  I  draw  from  these  cases?  It  is  this, 
that  general  fraudulent  conduct  signifies  nothing ;  that 
general  dishonesty  of  purpose  signifies  nothing  ;  that  at- 
tempts to  overreach  go  for  nothing ;  unless  all  this  dishon- 
esty of  purpose,  all  this  fraud,  all  this  intention  and  design, 
can  be  connected  with  the  particular  transaction,  and  not 
only  connected  with  the  particular  transaction,  but  the  very 


'  Polhill  V.  VV^alter,  3  B.  &  Ad.,  114. 

^  The  injured  party  must  not  only  have  rehed  upon  the  representation,  but  he 
must  have  had  a  right  to  rely  on  it.  Graffenstein  v.  Epstein,  23  Kansas,  443. 
If  he  enter  into  new  stipulations,  he  thereby  waives  the  misrepresentation. 
Thweatt  v.  McLeod,  i;6  Ala.,  375. 

'  Merewether  v.  Shaw,  2  Cox,  134  ;  Jennings  v.  Broughton,  5  De  G.  M.  &  G., 
126,  affirming  S.  C,  17  Beav.,  234;  Denne  v.  Light,  8  De  G.  M.  &  G.,  774  ;  Ju- 
zan  v.  Toulmin,  9  Ala.,  662;  Taylor  v.  Fleet,  i  Barb.,  471  ;  Phipps  v.  Buckman, 
30  Pa.  St.,  401.  Parol  evidence  is  admissible  to  show  what  passed  between  the 
parties  at  and  immediately  before  the  execution  of  a  writing,  where  what  was 
said  by  one  induced  the  other  to  execute  the  agreement.  Campbell  v.  McClena- 
chan,  6  Serg.  &  Rawle,  171.  It  is  sufficient  evidence  of  fraud,  that  assertions  as 
to  the  value  of  an  invention,  were  connected  with  a  false  representation  of  an 
extrinsic  fact  calculated  to  impose  upon  the  plaintiff,  to  put  him  off  his  guard, 
and  to  induce  him  to  give  credit  to  the  statement  of  value.  Miller  v.  Barber,  66 
N.  Y.,  558. 


§  312.       PARTY    COMPLAINING    OF    FALSE    STATEMENT.  425 

ground  upon  which  this  transaction  took  place,  and  have 
given  rise  to  the  contract."  '  Fraudulent  representations  as 
to  the  legal  operation  and  effect  of  an  instrument  will  avoid 
it,  although  made  to  a  person  who  can  read,  or  who  has 
read  the  instrument,  if  he  is  unable  to  judge  as  to  its  true 
character  and  construction.  But  to  have  that  effect,  the 
'fraud  must  be  contemporaneous  with  the  execution  of  the 
instrument,  and  consist  in  obtaining  the  assent  of  the  party 
defrauded  to  it  by  inducing  a  false  impression  of  its  nature 
and  operation.'  For  a  representation  to  be  of  avail  to  the 
party  alleging  it,  two  things  are  requisite  :  It  must  not  only 
have  been  false  and  material,  but  have  been  an  inducement 
to  the  transaction  ;'  for  the  former  may  exist  in  a  given 
case  without  the  latter.'  A  misrepresentation  to  be  material 
must  have  been  the  proximate  and  necessary,  and  not  the 
remote  or  indirect,  cause  of  it.*  Representations  calculated 
simply  to  arouse  the  sympathy  of  the  plaintiff,  and  induce 
him,  from  charitable  motives,  to  do  voluntarily  what  he 
knows  he  is  under  no  legal  obligation  to  do,  however  repre- 
hensible, do  not  furnish  any  basis  for  equitable  relief." 

§  312.  Party  complaining  of  false  statement  7nust  not 
have  been  in  fault. — To  justify  relief  in  equity  against  a  con- 
tract of  sale,  the  representation  of  the  vendor  must  have 
been  in  relation  to  some  material  thing  unknown  to  the  pur- 
chaser, which  absence  of  knowledge  must  not  have  arisen 
from  mere  negligence,  but  from  want  of  being  informed,  or 
from  an  entire  confidence  reposed  in  the  vendor  ;  and  then, 
a  remedy  must  be  sought  within  a  reasonable  time  after  the 

*  Attwood  V.  Small,  6  CI.  &  Fin.,  447. 

^  Berry  v.  Whitney,  40  Mich.,  65,  referring  to  White  &  Tudor's  Cases,  Vol.  2, 
Pt.  I,  559-567,  and  cases  cited. 

2  Hough  V.  Richardson,  3  Story,  690 ;  Ely  v.  Stewart,  2  Md.,  408 ;  Gunby  v. 
Sluter,  44  lb.,  237. 

^  Boyce  v.  Watson,  20  Ga„  517  ;  Clark  v.  Everhart,  63  Pa.  St.,  347  ;  McDon- 
ald V.  Trafton,  15  Me.,  225. 

*  Barry  v.  Croskey,  2  J.  &  H.,  i  ;  Barnes  v.  Pennell,  2  House  of  Lds.,  497,  531 ; 
New  Brunswick,  etc.,  R.R.  Co.  v.  Conybeare,  9  lb.,  711  ;  Shaw  v.  Stines,  8 
Bosw.,  157. 

"  Noel  V.  Horton,  50  Iowa,  687. 


426  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §313. 

injury  is  discovered.  As  where  the  vendor  prevents  the 
vendee  from  examining  the  records  in  relation  to  the  title 
by  assurances  that  the  title  is  perfectly  good,  and  the  prop- 
erty free  from  incumbrances,  and  upon  the  faith  of  such 
assurances  and  representations  the  vendee  abstains  from 
making  the  proper  examination.  But  the  court  will  not 
act  without  the  clearest  proof  of  the  fraudulent  representa- 
tions, and  that  they  were  made  under  such  circumstances 
as  to  show  that  the  contract  was  founded  on  them.'  The 
principle  is  applicable  to  the  quality  and  identity  of  proper- 
ty, as  well  as  to  incumbances  on  it." 

§  313.  In  cases  of  ti'-jist  and  confidence. — Where  there  is 
a  peculiar  relation  of  a  confidential  and  fiduciary  character, 
to  prevent  the  undue  advantage  which  the  situation  of  one 
of  the  parties  gives  him  over  the  other,  the  law  requires  the 
utmost  degree  of  good  faith  in  all  transactions  between 
them.  If  in  such  case  there  is  any  misrepresentation  or 
concealment  of  any  material  fact,  or  any  just  suspicion  of 
artifice  or  undue  influence,  the  court  will  interpose  and 
pronounce  the  transaction  void,  and,  as  far  as  possible,  re- 
store the  parties  to  their  original  rights.'  "  Courts  of  equity 
watch  with  extreme  jealousy,  all  contracts  made  by  persons 
when  there  is  ground  to  suspect  imposition,  oppression,  or 
undue  advantage  taken  by  one  of  the  parties  ;  or  when  one 
trusts  another  with  a  blind  and  credulous  confidence  ;  or 
when  one  of  the  parties,  from  whom  an  advantage  has  been 
obtained,  was  in  circumstances  of  extreme  necessity  and  dis- 
tress."' Where  a  sale  and  conveyance  of  real  estate  was  ob- 
tained by  undue  influence  exercised  over  the  mind  of  a 
weak  and  illiterate  man,  producing  confusion  and  terror, 
by  means  of  misrepresentations  as  to  his  personal  danger,  it 
was  held,  on  demurrer,  a  ground  for  equitable  relief."  A 
case  of  this  kind  is  more  nearly  aUied  to  duress,  than  to 

'  Holland  v.  Anderson,  38  Mo.,  55  ;  i  Story's  Eq.  Juris.,  Sec.  200. 
"^  Hall  V.  Thompson,  i  Sm.  &  Marsh,  443. 

3  Miller  v.  Miller,  68  Pa.  St.,  486.     See  Christian  v.  Ransome,  46  Ga.,  138. 
Willard's  Eq.  Juris.,  176.  *  Kuelkamp  v.  Kidding,  31  Wis.,  503. 


§  313-  IN    CASES    OF    TRUST    AND    CONFIDENCE.  427 

fraud  ;  or  perhaps  it  may  be  said  to  comprise  both.  In  a 
suit  against  an  aged  man-and  his  wife  for  the  specific  per- 
formance of  a  contract  to  sell  to  the  complainant  a  farm 
for  eleven  thousand  dollars,  one  thousand  dollars  of  which 
was  to  be  paid  on  a  specified  day,  when  the  land  was  to  be 
conveyed,  and  a  mortgage  given  back  for  the  payment 
of  the  balance  in  ten  years  thereafter  with  interest,  it 
appeared  that  it  was  further  agreed  that  if  the  purchaser 
should,  at  any  time,  desire  to  convey  the  property,  the  ven- 
dors would  cancel  the  mortgage  on  payment  by  the  pur- 
chaser to  them  of  such  portion  of  the  mortgage  as  the  land 
so  to  be  conveyed  bore  to  the  whole  farm.  The  vendee  did 
not  stipulate  to  buy  the  land,  or  to  pay  the  purchase  money, 
or  bind  himself  by  any  personal  obligation  to  carry  out  the 
agreement  on  his  part.  The  vendors  claimed  that  it  was 
verbally  agreed  that  there  should  be  reserved  from  the  sale, 
one  acre,  including  their  dwelling-house  and  other  buildings ; 
that  the  contract  was  drawn  by  the  vendee,  who,  upon  be- 
ing asked  if  the  reservation  had  been  specified  in  the  written 
contract,  answered  that  that  was  unnecessary,  as  it  would 
be  inserted  in  the  deed,  and  that  the  contract  was 'all  right ; 
that  the  vendors  having  confidence  in  the  vendee,  who  rep- 
resented that  he  was  something  of  a  lawyer,  and  relying  on 
his  statement,  signed  the  contract ;  that  when  the  first  pay- 
ment was  made,  they  tendered  a  deed  to  the  vendee  con- 
taining the  reservation,  which  he  declined  to  accept.  At 
the  trial,  the  vendee  offered  to  waive  the  unjust  provisions 
made  for  his  benefit,  and  to  bind  himself  personally  for  the 
payment  of  the  purchase  money,  provided  the  court  found 
that  the  contract  was  as  claimed  by  him,  and  that  it  em- 
braced the  acre  where  the  buildings  stood.  The  court,  in 
dismissing  the  bill,  said  :  "  Not  being  satisfied  that  any  such 
contract  was  ever  agreed  upon  between  the  parties  as  is  set 
up  in  the  bill,  and  without  passing  upon  the  question  of 
actual  fraud,  we  cannot  decree  specific  performance  of  the 
•contract,  notwithstanding  the  proposed  concessions  of  the 


428  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         § 


0^0- 


complainant."*  A  step-father  having  induced  his  step-sons, 
who  in  their  minority  were  accustomed  to  obey  him,  and 
were  ignorant  of  business  affairs,  to  make  a  contract,  un- 
conscionable in  character,  to  convey  to  him  their  real  estate, 
it  was  held  that  the  contract  could  not  be  enforced."  So, 
where  a  person  bought  land  of  a  young  man,  who  was  igno- 
rant of  its  value,  the  purchaser  knowing  what  it  was  worth, 
and  importuning  him  to  sell,  the  court  refused  specific  per- 
formance.' And  the  same  was  done  where  a  son  procured 
from  his  old  and  feeble  father  an  agreement  for  the  sale  to 
him  of  a  farm,  using  undue  influence  to  procure  it*  An 
infant  having  entered  into  a  written  agreement  for  the  sale 
of  his  land,  the  purchaser  brought  a  suit  for  specific  per- 
formance, alleging  that  the  infant,  in  conjunction  with  his 
father,  fraudulently  represented  that  he  was  of  age.  As  it 
appeared  that  the  purchaser  knew  that  there  was  great  doubt 
as  to  the  vendor's  age,  and  that  the  bargain  was  a  disadvan- 
tageous one  on  the  part  of  the  infant,  who  was  influenced 
by  his  father,  and  that  the  father  conducted  the  negotiation 
and  received  the  purchase  money,  the  bill  was  dismissed." 
Mere  weakness  of  intellect,  if  the  party  is  compos  mentis, 
does  not  deprive  him  of  the  capacity  to  contract.  But  im- 
becility of  understanding,  constitutes  a  material  ingredient 
in  examining  whether  a  bond,  Or  other  contract,  has  been 
obtained  by  fraud,  imposition,  or  undue  influence.  For, 
although  a  contract  made  by  a  man  of  fair  understanding, 
may  not  be  set  aside  because  it  was  a  rash,  improvident,  or 
hard  bargain,  yet  if  made  with  a  person  of  imbecile  mind, 
the  inference  naturally  arises  that  it  was  obtained  by  cir- 
cumvention, or  undue  influence."-  Where  a  party  making  a 

'  Chambers  v.  Livermore,  15  Mich.,  381.      "  Tucke  v.  Bucholz,  43  Iowa,  415. 

3  Clitherall  v.  Ogilvie,  i  Dessaus  Eq.,  250.        ^  Brady's  Appeal,  66  Pa.  St.,  277. 

'  Dibble  v.  Jones,  5  Jones  Eq.,  389. 

«  Reinicker  v.  Smith,  2  Har.  &  Johns,  324.  In  regard  to  acts  done  and  con- 
tracts made  by  parties  affecting  their  rights  and  interests,  the  general  theory  of 
the  law  is,  that  in  all  such  cases  there  must  be  full  and  free  consent,  in  order  to 
make  the  agreement  binding  on  them.  Hence  it  is  said,  that  if  consent  be  ob- 
tained by  meditated  imposition,  circumvention,  surprise,  or  undue  influence,  it  is 
to  be  treated  as  a  delusion,  and  not  as  a  deliberate  and  free  act  of  the  mind.    For 


§  214'  CONJECTURE,    OPINION,    OR    JUDGMENT,  429 

purchase  is  intoxicated  at  the  time  of  the  sale,  such  intoxi- 
cation is  not  sufficient  cause  to  refuse  to  decree  specific 
performance  of  the  contract  against  him,  unless  it  appear 
that  the  vendor  produced  or  procured  his  intoxication,  or 
that  undue  advantage  was  taken  of  it/  If  one  of  the  par- 
ties is  a  guardian  or  trustee,  the  plaintiff  must  show  that 
the  contract  sought  to  be  enforced,  was  such  as  the  guard- 
ian, acting  for  the  best  interests  of  the  infant,  might  prop- 
erly have  made,  and  such  as  the  court  would  have  author- 
ized and  approved,  had  authority  to  make  it  been  asked." 

§314.  Conjecture,  opinion^  or  JttdgmenL  —  In  con- 
sidering whether  the  defendant  relied  on  the  statements  of 
the  plaintiff,  it  is  important  to  distinguish  between  such 
representations  as  belong  to  the  bargain,  whether  made  a 
part  of  the  legal  agreement  or  not,  and  the  mere  holding 
out  of  vague  hopes  and  anticipations  which  ought  to  put 
the  party  on  inquiry.  To  this  end,  an  important  question 
will  be,  whether  what  was  undertaken  or  stated,  w^as  in  the 
power  or  knowledge  of  the  party  making  the  representa- 


although  the  law  will  not  inquire  generally  into  men's  acts  and  contracts,  to  de- 
termine whether  they  are  wise  and  prudent,  yet  it  will  not  suffer  them  to  be  en- 
trapped by  the  fraudulent  contrivances,  or  cunning,  or  deceitful  management  of 
those  who  purposely  mislead  them. 

'  Maxwell  v.  Pittinger,  3  N.  J.  Eq.,  (2  Green),  1 56  ;  Rodman  v.  Zilley,  i  lb.  (Sax- 
ton,  320  ;  Whitesides  v.  Greenlee,  2  Dev.  Eq.,  152  ;  Hanna  v,  Phillips,  i  Grant 
Pa.  Gas.,  253.  Of  course,  a  contract  entered  into  by  a  person  who  is  in  such  a 
state  of  intoxication  as  to  be  deprived  of  his  reason,  is  incapable  of  being  enforced 
against  him.  Crane  v.  Conklin,  Saxton,  346  ;  Morrison  v,  McLeod,  2  Dev.  &  Batt. 
Ch.,  221  ;  Cruise  v.  Christopher,  5  Dana,  181  ;  Phillips  v.  Moore,  11  Mo.,  600; 
Prentice  v.  Achorn,  2  Paige  Ch.,  30 ;  Galloway  v.  Witherspoon,  5  Ired.  Eq.,  128. 
See  ante,  Book  III.,  Ch.  i. 

-  Sherman  v.  Wright,  49  N.  Y„  227.  In  equity,  dealings  between  a  guardian 
and  his  ward  are  closely  scrutinized,  and  unless  it  appear  that  they  were  under- 
taken by  the  ward  freely,  and  with  knowledge  of  their  nature,  character,  and 
probable  consequences,  they  will  be  invalid.  Archer  v.  Hudson,  15  L.  J.  Ch., 
211  ;  Mulhallen  v.  Marum,  3  D.  &  W.,  317  ;  Waller  v.  Armistead,  ?.  Leigh,  11  ; 
Gallatin  v.  Erwin,  i  Hopkins  Ch.,  48 ;  Love  v.  Lea,  2  Ired.  Eq.,  627  ;  Lee  v. 
Fox,  6  Dana,  171  ;  Scott  v.  Freeland,  7  Sm.  &  Marsh,  409  ;  Meek  v.  Perry,  36 
Miss.,  190;  Walker  v.  Walker,  loi  Mass.,  169.  But  in  a  suit  by  the  trustees  of 
a  married  woman  for  the  specific  performance  of  an  agreement  to  sell  the  unex- 
pired remainder  of  an  under-lease  of  a  house,  interrogatories  filed  by  the  defend- 
ant to  show  that  the  proposed  investment  of  the  trust  funds  in  the  purchase  was 
a  breach  of  trust,  were  ordered  to  be  stricken  out  as  irrelevant ;  the  simple  ques- 
tion in  the  suit  being  whether  there  was  a  binding  agreement.  Mansfield  v. 
Childerhouse,  L.  R.  4,  Ch.  D.  82. 


430  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  314. 

tion.  Thus,  in  a  sale  of  mining  property,  there  is  a  wide 
difference  between  a  specific  assertion  as  to  its  capabilities, 
and  a  general  statement  relative  to  its  prospects,  which, 
from  the  nature  of  such  property,  must  be  in  a  great  meas- 
ure problematical.'  Where  a  vendor  told  the  vendee  that 
he  had  heard  his  brother  say  that  the  plot  called  for  one 
hundred  and  seventy-three  acres,  but  that  he  did  not  him- 
self know  how  much  it  contained,  never  having  seen  it 
surveyed,  it  was  held  that  such  representation  could  not  be 
considered  as  making  it  inequitable  to  compel  performance 
by  the  vendee,  though,  upon  measurement,  the  farm  was 
found  to  contain  only  one  hundred  and  forty- five  acres.' 
The  ordinary  banter  and  abating  of  prices  will  not  be  en- 
titled to  much  weight.  The  decision  must  rest  upon  the 
presence  or  absence  of  such  a  state  of  facts,  as,  under  all 
the    circumstances,   renders   the    bargain    unconscionable.' 

'  Jennings  v.  Broughton,  17  Beav.,  234.  A  matter  of  opinion  may,  however, 
amount  to  an  affirmation,  and  be  the  inducement  to  a  contract.  Grim  v.  Byrd, 
32  Gratt.,  293.  It  has  been  held  that  a  verbal  promise  by  one  of  the  parties  at 
the  time  of  making  a  written  contract,  when  used  to  obtain  the  execution  of  the 
writing,  may  be  given  in  evidence,  on  the  ground  that  the  attempt  afterward  to 
take  advantage  of  the  omission  from  the  contract  of  such  promise,  is  a  fraud 
upon  the  party  who  was  induced  to  execute  it  upon  such  promise.  Powelton 
Coal  Co.  V.  McShane,  75  Pa.  St.,  238  ;  Graver  v.  Scott,  80  lb.,  88.  By  a  mar- 
riage settlement,  real  estate  was  limited  to  such  uses  as  A.  and  B.,  a  husband 
and  wife,  should  appoint,  and,  in  default  of  appointment,  to  the  use  of  trustees 
during  the  life  of  B.,  in  trust  for  her  separate  use,  with  remainder  to  A.  in  fee. 
A.  contracted  to  sell  the  land  to  C,  who  had  knowledge  of  the  settlement ;  and 
A.  stipulated  that  he  would  "  procure  a  proper  assurance  of  the  premises  to  the 
purchaser,  to  be  executed  by  all  necessary  parties."  C.  paid  the  purchase 
money  to  the  trustees  of  the  settlement,  who  invested  it  pursuant  to  the  con- 
tract ;  and  a  draft  conveyance  in  the  form  of  a  joint  appointment  by  A.  and  B. 
to  C.  was  approved,  but  before  it  was  executed,  A.  died,  and  B.  thereupon  re- 
fused to  convey  her  life  interest.  It  was  held  that  C.  was  entitled  to  a  perform- 
ance of  the  contract  to  the  extent  of  A.'s  remainder  in  fee,  with  compensation 
in  respect  to  B.'s  life  interest,  and  a  lien  on  the  purchase  money  in  the  hands  of 
the  trustees  of  the  settlement.  Baker  v.  Cox,  L.  R.  4,  Ch.  D.  464.  The  fore- 
going decision  was  made  on  the  ground  that  A.  represented  that  he  had  the 
means  of  conveying  the  entire  interest,  and  that  C.  had  good  reason  under  the 
circumstances  to  suppose  that  the  husband  and  wife  would  join  in  a  conveyance 
by  way  of  appointment,  which  under  the  settlement  they  had  a  right  to  do,  and 
that  having  parted  with  his  money,  he  was  entitled  to  be  placed  by  compensa- 
tion in  the  position  he  would  have  been  in  if  the  contract  had  been  completed. 
In  Castle  v.  Wilkinson,  L.  R.  5,  Ch.  53,  in  which  it  was  held  that  the  purchaser 
could  not  compel  the  husband  to  convey  his  interest  and  accept  an  abated  price, 
the  purchaser  was  not  misled,  but  knew  that  the  property  belonged  to  the  wife. 

-  StuU  v.  Hurtt,  9  Gill,  446  ;  Stebbins  v.  Eddy,  4  Mason,  414.  But  see  Prin- 
gle  v.  Samuel,  i   Litt.,  43. 

2  Swimm  v.  Bush,  23  Mich.,  99. 


§  314-  CONJECTURE,    OPINION,    OR    JUDGMENT.  43 1 

Boastful  or  exaggerated  statements  are  different  from  the 
assertion  of  a  definite  fact/  Loose,  conjectural,  and  over- 
drawn representations,  as  to  the  prospects  of  a  company, 
or  as  to  the  value  of  securities,  or  the  situation  of  property, 
are  essentially  uncertain  in  their  nature,  and  but  the  ex- 
pression of  opinion  or  judgment,  as  to  which  honest  men 
may  differ.  Although  such  affirmations  may  be  erroneous 
or  false,  they  wnll  not  usually  be  regarded  as  evidence  of 
fraudulent  intent.''  A  representation  that  land  was  uncom- 
monly rich  w^ater-meadow,  when  in  fact  it  was  very  imper- 
fectly watered,  was  held  not  to  be  a  bar  to  performance.' 
Where  the  principal  ground  on  which  the  purchaser  relied 
to  set  aside  the  sale,  w\as,  that  the  vendor  untruly  and 
fraudulently  represented,  during  their  negotiations,  that  the 
land  in  question  "was  full  as  early,  if  not  earlier,  than  any 
other  land  on  the  west  end  of  Long  Island,  and  was  as  well 
adapted  to  the  raising  of  early  vegetables,  fruits,  and  market 
produce,  as  any  other  land  on  the  end  of  the  Island,  a  de- 
cree in  favor  of  the  complainant  in  the  court  below,  was 
reversed  with  costs.'     An  assertion  of  value  may,  however, 


'Ross  V.  Estates  Investment  Co.,  L.  R.  3,  Eq.  136;  Ingram  v.  Thorp,  7 
Hare,  74 ;  Hume  v.  Pocock,  L.  R.  i,  Ch,  385. 

2  Dimmock  v.  Hallett,  L.  R.  i,  Ch.  26;  Evans  v.  Boiling,  5  Ala.,  550;  Halls 
V.  Thompson,  i  Sm.  &  Marsh,  443  ;  Anderson  v.  Hall,  2  lb.,  679  ;  Medbury  v. 
Watson,  6  Mete,  259;  Gordon  v.  Parmelee,  2  Allen,  214;  Manning  v.  Albee, 
II  lb.,  522  ;  Drake  v.  Latham,  50  III,  270  ;  Bridges  v.  Robinson,  2  Tenn.  Ch., 
720.  "  Mere  general  assertions  of  a  v^endor  of  property,  as  to  its  value,  or  the 
price  he  has  been  offered  for  it,  or  in  relation  to  its  qualities  and  characteristics  ; 
— as  for  instance,  that  land  is  fertile  and  improvable,  or  that  the  soil  is  adapted 
to  a  particular  mode  of  culture,  or  is  well  watered,  or  is  capable  of  producing 
crops,  or  supporting  cattle,  or  that  a  house  is  a  desirable  residence,  etc  ,  are  as- 
sumed to  be  so  commonly  made  by  persons  having  property  for  sale,  that  a  pur- 
chaser cannot  safely  place  confidence  in  them.  Affirmations  of  the  sort  are 
always  understood  as  affording  to  a  purchaser  no  ground  for  neglecting  to 
examine  for  himself,  and  ascertain  the  real  condition  of  the  property.  They  are, 
strictly  speaking, ^rrt//.y  dict^y..  A  man  who  relies  on  such  affirmations,  made  by 
a  person  whose  mterest  might  so  readily  prompt  him  to  invest  the  property  with 
exaggerated  value,  does  so  at  his  peril,  and  must  take  the  consequences  of  his 
own  imprudence."     Kerr  on  Fraud  and  Mistake,  83,  84. 

^  Scott  v.  Hanson,  i  Sim.,  13;  i  Ry.  &  M.,  128. 

*  Taylor  v.  Fleet,  4  Barb.,  95,  reversing  S.  C,  i  lb.,  471.  In  the  foregoing 
case,  it  appeared  that  A.  bought  a  farm  of  B.,  for  the  purpose  of  engaging  in 
the  business  of  raising  early  vegetables  for  the  New  York  market,  B.  being  at 
the  time  apprised  of  his  object.     The  farm  was  not  in  fact  as  well  adapted  to 


432  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §315- 

be  so  extravagant,  that  the  party  making  it  could  not  pos- 
sibly have  believed  it  himself."  The  same  may  be  the  case 
as  to  statements  respecting  the  quality  or  condition  of  land  ;" 
and  so  of  other  statements.'  It  has  been  held  that  a  pur- 
chaser is  not  justified  in  relying  on  the  assertion  of  the 
vendor  that  a  third  person  offered  a  given  sum  for  the  prop- 
erty.* But,  in  general,  it  is  the  duty  of  the  vendor,  if  he 
make  statements  relative  to  the  property,  to  do  so  accord- 
ing to  the  facts,  and  in  language  free  from  ambiguity." 
Specific  performance  was  decreed  of  a  contract  to  purchase 
colliery  works,  with  compensation  to  the  purchasers  in  re- 
spect to  misrepresentations  of  the  vendor  as  to  the  amount 
of  stores  consumed  in  the  colliery,  and  a  consequent  excess 
in  the  statement  of  income,  and  the  purchasers  were  held 
entitled  to  a  deduction  from  the  purchase  money  bearing 
the  same  proportion  to  the  whole  amount,  as  the  excess 
bore  to  the  income  stated.' 

§  315.  Presumptioit  that  false  statement  pj^oduced  no 
effect, — Some  of  the  reasons  for  presuming  that  a  represen- 
tation was  not  relied  on  by  the  party  to  whom  it  was  made, 
were  stated   by  Lord   Langdale'   thus :  "  If  the   party  to 


the  purpose  in  view,  as  other  lands  in  the  neighborhood,  crops  in  the  latter  being 
a  week  or  ten  days  earlier.  A.  was  uninformed  as  to  the  character  and  capa- 
bilities of  the  farm,  and  had  no  means  of  obtaining  such  information  excepting 
from  those  who  had  derived  it  from  their  own  observation  and  experience.  B., 
knowing  that  his  farm  was  not  as  early  as  other  lands  in  the  vicinity,  repre- 
sented to  A.,  when  asked  by  him  in  relation  to  the  quality  and  capability  of  the 
soil,  that  "  there  was  no  earlier  land  anywhere  about  there."  And  A.  made  the 
purchase  relying  on  the  truth  of  this  representation,  in  the  court  below,  it  was 
held  that  the  sale  must  be  set  aside,  and  the  parties  be  restored  to  their  original 
rights;  that  there  must  be  a  decree  directing  the  repayment  of  the  purchase 
money  received  by  B.,  with  interest,  upon  the  execution  of  a  reconveyance  by 
A. ;  that  A.  was  entitled  to  be  paid  for  the  increased  value  of  the  farm  by  reason 
of  permanent  improvements  made  since  the  purchase,  and  must  be  charged 
with  the  fair  annual  value  of  the  farm  by  reason  of  permanent  improvements 
made  since  the  sale  ;  and,  that  a  bond  and  mortgage  executed  to  secure  the 
balance  of  the  purchase  money,  and  for  the  foreclosure  of  which  a  cross  bill  had 
been  tiled,  must  be  cancelled. 

» Wall  V.  Stubbs,  i  Mad.,  80 ;  Ingram  v.  Thorp,  7  Hare,  74. 

*  Dimmock  v.  Hallett,  supra  ;  Van  Epps  v.  Harrison,  5  Hill,  67. 

3  Henderson  v.  Lacon,  5  Eq.,  257.  '  I  Roll.  Abr.,  loi,  PI.  16. 

*  Martin  v.  Cotter,  3  Jon.  &  L.,  496,  507  ;  Wall  v.  Stubbs,  supra. 

°  Powell  V.  Elliott,  L.  R.  10,  Ch.  424.       '  In  Clapham  v.  Shillito,  7  Beav.,  146. 


§  3l6.       PARTY    WHO    INVESTIGATES    REPRESENTATION.  433 

whom  the  representations  were  made,  himself  resorted  to 
the  proper  means  of  verification  before  he  entered  into  the 
contract,  it  may  appear  that  he  rehed  upon  the  result  of  his 
own  investigation  and  inquiry,  and  not  upon  the  represen- 
tations made  to  him  by  the  other  party.  Or,  if  the  means 
of  investigation  and  verification  be  at  hand,  and  the  atten- 
tion of  the  party  receiving  the  representations  be  drawn  to 
them,  the  circumstances  of  the  case  may  be  such  as  to  make 
it  incumbent  on  a  court  of  justice  to  impute  to  him  a 
knowledge  of  the  result,  which,  upon  due  inquiry,  he  ought 
to  have  obtained,  and  thus  the  notion  of  reliance  on  the 
representations  made  to  him  may  be  excluded.  Again, 
when  we  are  endeavoring  to  ascertain  what  reliance  was 
placed  on  representations,  we  must  consider  them  with  ref- 
erence to  the  subject  matter  and  the  relative  knowledge  of 
the  parties.  If  the  subject  is  capable  of  being  accurately 
known,  and  one  party  is,  or  is  supposed  to  be,  possessed  of 
accurate  knowledge,  and  the  other  is  entirely  ignorant,  and 
a  contract  is  entered  into  after  representations  made  by  the 
party  who  knows,  or  is  supposed  to  know,  without  any 
means  of  verification  being  resorted  to  by  the  other,  it  may 
well  enough  be  presumed  that  the  ignorant  man  relied  on 
the  statements  made  to  him  by  him  who  was  supposed  to 
be  better  informed.  But  if  the  subject  is  in  its  nature  un- 
certain, if  all  that  is  known  about  it  is  matter  of  inference 
from  something  else,  and  if  the  parties  making  and  receiv- 
ing representations  on  the  subject  have  equal  knowledge 
and  means  of  acquiring  information,  and  equal  skill,  it  is 
not  easy  to  presume  that  representations  made  by  one 
would  have  much,  or  any,  influence  upon  the  other." 

§  3 1 6.  Where  party  to  whom  represejitation  is  made  in- 
vestigates it. — If  a  person,  to  whom  a  statement  is  made, 
resorts  to  other  means  of  knowledge  open  to  him,  and  re- 
lies upon  his  own  judgment  in  the  matter,  he  cannot  be 
heard  to  say  that  he  rehed  upon  the  representation.'  It  was 

1  Pike  V.  Vigers,  2  D.  &  W.,  261  ;  Clarke  v.  Macintosh,  4  Giff.,  134 ;  Hough 
V.  Richardson,  3  Story,  659;  Vesey  v,  Doton,  3  Allen,  380. 

28 


434  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  316. 

said  in  an  early  case  :  "  If  the  vendor  gives  in  his  particu- 
lar of  the  rents,  and  the  vendee  says  he  will  trust  him  and 
inquire  no  further,  but  rely  upon  his  particular ;  then,  if  the 
particular  be  false,  an  action  will  lie.  But  if  the  vendee 
will  go  and  inquire  further  what  the  rents  are,  there  it  seems 
unreasonable  he  should  have  any  action,  though  the  par- 
ticulars are  false  ;  because  he  did  not  rely  on  the  particu- 
lar."' In  the  celebrated  case  of  Small  v.  Attwood,'  which 
was  a  suit  for  the  rescission  of  a  contract,  it  appeared  that 
the  British  iron  company  had  sent  a  committee  of  its  direc- 
tors to  the  works  of  Attwood  to  verify  his  statements,  who 
reported  that  they  were  satisfied  with  the  proofs.  It  was 
held  that  the  company  had  thereby  precluded  itself  from 
setting  up  in  defence  any  previous  misrepresentations  ;  on 
the  ground  that  "  if  a  purchaser  chooses  to  judge  for  him- 
self, and  does  not  avail  himself  of  all  the  know^ledge,  and 
means  of  knowledge,  open  to  him,  he  will  not  afterward  be 
allowed  to  say  that  he  was  deceived  by  the  representations 
of  the  vendor.'"  So,  in  a  suit  to  set  aside  the  sale  of  shares 
in  a  mine  on  the  ground  of  misrepresentations  as  to  the 
condition  of  the  mine,  it  being  shown  that  the  plaintiff  had 
inspected  the  mine  and  investigated  its  condition,  the  bill 
was  dismissed,  the  alleged  misrepresentation  being  such  as 
he  might  have  discovered.'  And  where  the  vendee  of  land 
objected  that  he  was  misled  by  a  representation  that  the 
woods  sold  had  yielded  two  hundred  and  fifty  pounds  a 
year  for  an  average  of  fifteen  years,  wiien,  though  they 
might  in  fact  have  done  so,  yet  they  would  not  have  done 
it  in  a  fair  course  of  husbandry,  and  it  was  proved  that  he 
was  given  a  paper  from  which  he  might  have  learned  that 
the  woods  had  been  unequally  cut,  it  was  held  that  the  ob- 
jection could  not  prevail.'  But  if  the  misrepresentation  of 
a  material  fact  is  such  as  to  prevent  a  full  examination,  and 

1  Lord  Holt  in  Lysney  v.  Selby,  2  L.d.  Rymn.,  11 18,  11 20. 
^  6  CI.  &  Fin.,  232.  "  Fry  on  Specif.  Perform.,  199, 

*  Jennings  v.  Brougiiton,  17  Beav.,  234,  Affd.  5  De  G.  M.&  G.,  126. 
'  Lowndes  v.  Lane,  2  Cox,  363. 


§317-  PARTY    ACTING    WITH    FULL    KNOWLEDGE.  435 

to  cause  the  statement  to  be  in  part  confided  in,  to  the  in- 
jury of  the  person  to  whom  it  is  made,  it  vitiates  the  entire 
contract/ 

§  3 1 7.  Where  party  complaining  of  deception  acted  with 
full  knowledge. — A  misrepresentation  in  a  matter  of  opin- 
ion and  fact,  equally  open  to  the  inquiry  of  both  parties,  and 
in  regard  to  which  neither  can  be  presumed  to  have  trusted 
the  other,  unless  it  be  a  mere  contrivance  of  fraud  in  cases 
of  peculiar  relationship  or  confidence,  or  where  the  other 
party  has  justly  reposed  upon  it,  and  has  been  misled,  fur- 
nishes no  ground  for  the  interference  of  equity.  Where 
means  of  knowledge  are  at  hand  and  available  to  both  par- 
ties, and  the  subject  of  the  contract  is  equally  open  to  their 
inspection,  if  the  party  to  whom  the  statement  is  made 
does  not  avail  himself  of  those  means  and  opportunities,  he 
will  not  be  heard  to  say,  in  impeachment  of  the  contract, 
that  he  was  drawm  into  it  by  misrepresentations."  It  will 
therefore  be  a  sufficient  answer  to  an  alleged  misrepresenta- 
tion, that  the  party  setting  it  up  was  well  aw^are  of  the  real 
facts,  and  that  he  knew  from  the  beginning  all  the  matters 
complained  of,  or,  after  obtaining  such  knowledge,  con- 
tinued to  act  on  the  agreement,  or  to  deal  with  the  prop- 
erty embraced  in  it — as  the  lessee  of  a  mine  continuing  to 
work  it  after  knowledge  of  alleged  misrepresentations  ; '  or 
where  a  person,  after  ascertaining  that  the  statements  in  a 

'  Mason  v.  Crosby,  i  Woodb.  &  Minot,  342 ;  Smith  v.  Babcock,  2  lb.,  246. 

"^  Slaughter  v.  Gerson,  13  Wall,  383  ;  Tallman  v.  Green,  3  Sandf.,  437  ;  Smith 
V.  Couutryman,  30  N.  Y.,  681 ;  Long  v.  Warren,  68  lb.,  426  ;  Mooney  v.  Miller, 
102  Mass.,  220.  A.  and  B.  agreed  to  exchange  lands,  A.'s  land  being  estimated 
at  twenty-two  hundred  dollars,  for  which  B.  was  to  convey  land  of  equal  value 
when  A.  had  selected  it  and  had  furnished  a  plot  of  that  chosen.  Subsequently 
the  time  for  choosing,  valuing,  and  conveying  B.'s  land  was  extended,  upon 
A.'s  representations  as  to  its  value,  and  it  was  agreed  that  A.  might  take  land 
from  other  tracts  to  the  amount  of  twenty-two  hundred  dollars,  to  be  valued  by 
the  agents  of  both  parties.  A.  conveyed  to  B.,  and  B.'s  land  was  valued.  A. 
liaving  died,  and  B.  having  become  bankrupt,  the  executors  of  A.  demanded  a 
conveyance  from  the  assignees  of  B.,  which  was  refused,  on  the  ground  that  the 
second  contract  had  been  obtained  by  the  misrepresentations  of  A.  On  a  bill  to 
obtain  a  conveyance,  it  was  held  that  it  could  not  be  presumed  that  B.  acted 
solely  upon  the  representations  of  A.,  and  that  the  assignees  of  B.  must  convey. 
M'lver  V.  Kyger,  3  Wheat.,  35. 

3  Vigers  v.  Pike,  8  CI.  &  Fin.,  562.     See  McBryde  v.  Weekes,  22  Beav.,  533. 


436  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  317- 

prospectus,  on  the  faith  of  which  he  has  bought  shares,  are 
false,  deals  with  the  shares  as  owner,  by  directing  a  broker 
to  sell  them  ; '  or  concurs  in  the  appointment  of  a  commit- 
tee of  investigation  into  the  affairs  of  the  company  in  be- 
half of  the  shareholders.'  This  principle  applies  where  the 
thing  respecting  which  the  representations  are  made  is  ca- 
pable of  being  seen  by  any  one.'  If  the  defects  in  the  sub- 
ject matter  of  sale  are  such  as  are  capable  of  being  discov- 
ered by  the  exercise  of  ordinary  vigilance,  and  the  vendee 
is  afforded  an  opportunity  to  view  the  property,  the  vendor 
is  not  required  to  assist  the  observation  of  the  purchaser. 
Although  a  false  statement  has  been  made  by  the  vendor 
relative  to  some  patent  defect  in  the  property  sold,  yet  if  it 
be  proved  that  the  purchaser  has  seen  the  property,  so  that 
the  defect  must  have  been  known  to  him,  he  cannot  avail 
himself  of  the  defect  as  a  bar  to  specific  performance. 
Where  a  farm  was  described  as  being  bounded  by  a  ring 
fence,  which  was  not  the  case,  and  it  was  proved  that  the 
defendant  had  spent  his  life  in  the  neighborhood,  had 
viewed  the  farm  before  purchasing  it,  and  must  have 
known  whether  or  not  it  lay  within  a  ring  fence,  the  al- 
leged misrepresentation  was  held  not  a  defence.'  The  same 
principle  applies  to  a  warranty  at  law,  in  which  defects  ap- 
parent at  the  time  of  the  bargain  are  not  included,  because 
they  cannot  be  the  subjects  of  deceit  or  fraud."  But  a  mis- 
representation of  the  vendor  will  not  be  excused,  without 
conclusive  proof  of  knowledge  in  the  other  party.  He 
"  must  show  very  clearly  that  the  purchaser  knew  that  to 
be  untrue  which  was  represented  to  him  as  true  ;  for  no 
man  can   be  heard  to  say  that  he  is  to  be  assumed  not  to 

'  Briggs  ex  parte,  L.  R.  i,  Eq.  483.        "  Lawrence's  Case,  L.  R.  2,  Ch.  424. 

'  Grant  v.  Munt,  Cooper,  173  ;  Buck  v.  McCaughtry,  5  Monroe,  216  ;  Reading 
V.  Price,  3  J.  J.  Marsh,  61  ;  Barnett  v.  Stanton,  2  Ala.,  181  ;  McKinney  v.  Fort, 
10  Texas,  220 ;  Barron  v.  Alexander,  27  Mo.,  530 ;  Caldwell  v.  McClelland,  3 
Sneed,  150. 

*  Dyer  v,  Hargrave,  10  Ves.,  505.  » 

^  Bayley  v.  Merrel,  Cro.  Jac,  386 ;  Margetson  v.  Wright,  7  Bing.,  603 ;  Hors- 
fall  V.  Thomas,  i  H.  &  C,  100. 


§  317-  PARTY    ACTING    WITH    FULL    KNOWLEDGE.  437 

have  spoken  the  truth.'"  Where  particulars  described  the 
subject  of  sale  as  a  certain  interest,  if  any,  the  vendor  being 
aware  at  the  time  that  it  v/as  valueless,  which  the  purchaser 
had  no  means  of  knowing,  the  transaction  was  held  fraudu- 
lent' And  where  the  vendor  concealed  the  fact  that  the 
premises  encroached  on  a  common  to  which  he  had  no  ti- 
tle, the  sale  was  set  aside.'  If  a  sale  be  made  of  property 
situated  abroad  or  at  a  distance,  and  the  purchaser,  never 
having  seen  it,  is  obliged  to  depend  upon  the  statement  of 
the  vendor  with  respect  to  it,  the  vendor  is  bound  to  make 
good  the  representation.'  A  purchaser,  who  is  intimately 
acquainted  with  the  property,  may  not  have  knowledge  of 
its  exact  contents,  and  thus  be  deceived  by  a  representation 
which  conveys  the  idea  of  exact  admeasurement'  The  fact 
that  other  means  of  knowledge  were  open  to  the  purchaser 
will  not  be  sufficient,  although,  independently  of  the  repre- 
sentation, the  party  relying  on  it  would  in  law  have  been 
taken  to  have  had  notice  of  the  contrary ;  but  it  must  be 
shown  that  information  of  the  real  facts  was  communicated 
to  the  purchaser ;  the  doctrine  of  notice  not  being  applica- 
ble where  there  has  been  a  representation  as  to  something, 
notice  of  which  would  otherwise  be  implied."  So,  where  a 
positive  representation  has  been  made,  it  will  not  be 
avoided  by  a  general  statement,  or  circumstances  from 
which  an  inference  contrary  to  the  representation  might  be 
drawn,  although,  if  the  representation  had  not  been  made, 
they  might  have  been  sufficient  to  put  the  other  party  on 

'  Knight,  Bruce,  L.  J.,  in  Price  v.  Macaulay,  2  De  G.  M.  &  G.,  346 ;  Wilson  v. 
Short,  6  Hare,  366,  378  ;  Dyer  v.  Hargrave,  siipra. 

-  Mellish  V.  Motteux,  Peake,  115.  And  see  Smith  v.  Harrison,  26  L.  J.  Ch., 
412. 

^  Edwards  v.  M'Leay,  2  Swanst.,  287. 

*  Re  Reese  River  Silver  Mining  Co.,  L.  R.  2,  Ch.  614 ;  Smith  v.  Richards,  13 
Pet.,  26 ;  Camp  v.  Camp,  2  Ala.,  632 ;  Spalding  v.  Hedges,  2  Pa.  St.,  240 ;  Bab- 
cock  V.  Case,  61  lb.,  427 ;  Miner  v.  Medbury,  6  Wis.,  295. 

*  Hill  V.  Buckley,  17  Ves.,  394. 

*  Drysdale  v.  Mace,  2  Sm.  &  Gif.,  225,  230 ;  Price  v.  Macaulay,  supra.  And  see 
Gibson  v.  D'Este,  2  Y.  &  C.  C.  C,  542,  572.  A  misrepresentation  as  to  title 
will  not  be  cured  by  the  fact  that  the  deed  is  recorded,  Parham  v.  Randolph, 
4  How.  (Miss,),  435. 


43^  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  3 1 7- 

inquiry  ; '  nor  by  the  fact  that  the  person  making  the  rep- 
resentation advised  the  other  party  to  consult  his  friends 
and  professional  advisers  ;  for  "no  man  can  complain  that 
another  has  too  implicitly  relied  on  the  truth  of  what  he 
has  himself  stated.""  Thus,  a  vendor  will  be  bound  by  a 
misrepresentation  relative  to  a  lease,  notwithstanding  the 
presumption  of  law  that  the  purchaser  had  notice  of  the 
covenants  of  the  lease.'  However  negligent  the  party  may 
have  been  to  whom  the  misrepresentation  is  made,  it  is  not 
a  ground  of  defence  to  the  other.  A  vendor  who  falsely 
stated  that  the  house  sold  was  substantially  and  well  built, 
was  held  not  entitled  to  specific  performance,  though  the 
purchaser  might  have  ascertained  its  actual  condition."  A 
contract  having  been  entered  into  on  the  faith  of  misrepre- 
sentations as  to  the  profits  of  a  theatre,  of  which  the  par- 
ties were  joint  owners,  it  was  held  that  as  the  statements 
were  founded  on  accounts  which  were  equally  open  to  both 
parties,  they  did  not  avoid  the  contract.  This  decision  was, 
however,  overruled  on  the  ground  that  the  misrepresenta- 
tions were  made  with  a  view  to  the  agreement,  and  that 
the  accounts  were  so  kept  as  to  make  it  difficult,  without 
the  aid  of  an  accountant,  to  draw  a  certain  conclusion  from 
them.'  The  purchaser  is  not  bound  to  institute  an  inquiry 
unless  something  has  occurred  to  excite  his  suspicion,  or 
unless  there  is  something  in  the  case  or  in  the  representa- 
tion to  put  him  on  inquiry.'  Although  he  may  have  been 
put  on  his  guard  by  the  sale  of  the  property  "with  all 
faults,"  yet  the  vendor  will  not  be  permitted  to  say  that  the 
purchaser  did  not  rely  on  his  representations,  nor  will  it 
prevent  the  avoidance  of  the  sale  on  account  of  them.' 

'  Wilson  V.  Short,  6  Hare,  366,  377 ;  Flight  v.  Barton,  3  M.  &  K.,  282  ;  Pope 
V.  Garland,  4  Y.  &  C.  Ex.,  394. 

-  Reynell  v.  Sprye,  i  De  G.  M.  &  G.,  660,  710;  Dobell  v.  Stevens,  3  B.  &  C, 
623. 

^  Van  V.  Corpe,  3  M.  &  K.,  269.  *  Cox  v.  Middleton,  2  Drew,  209. 

"•  Harris  v.  Kemble,  i  Sim.,  in,  120;  S.  C.,  5  Bligh,  N.  S.,  730. 

'Rawlins  v.  Wickham,  3  De  G.  &  J.,  304;  Kent  v.  Freehold  Land  and 
Brick-making  Co.,  L.  R.  4,  Eq.  598. 

'  Schneider  v.  Heath,  3  Camp,  506. 


§§318,319-  MUST    HAVE    BEEN    DETRIMENTAL.  439 

§  318.  Defence  personal. — Under  the  rule  that  a  mis- 
representation, to  be  a  defence,  must  have  been  reHed  on 
by  the  party  to  whom  it  is  made,  the  remedy  is  personal, 
applying  only  to  him,  his  representatives  and  privies,  and 
not  extending  to  a  person  to  v/hom  he  assigns  the  con- 
tract/ If,  for  instance,  A.  enter  into  an  agreement  with 
B.  under  circumstances  of  fraud  on  the  part  of  A.,  which 
would  prevent  him  from  enforcing  the  contract,  and  B.  as- 
signs the  contract  to  C,  who  is  not  affected  by  the  original 
misrepresentation,  the  contract  may  be  enforced  against  C/ 

§  319.  Must  have  beeit  detrimental. — A  misrepresenta- 
tion, to  prevent  specific  performance,  must  have  operated 
to  the  prejudice  of  the  party  to  whom  it  is  made  ;  fraud 
without  injury  not  entitling  the  party  to  relief,  either  at 
law  or  in  equity.'  "  For  courts  of  equity  do  not,  any 
more  than  courts  of  law,  sit  for  the  purpose  of  enforcing 
moral  obligations,  or  correcting  unconscientious  acts,  which 
are  followed  by  no  loss  or  damage."*  Therefore,  where  A. 
caused  a  purchaser  to.  believe  that  he  was  contracting  with 
B.  through  his  (A.'s)  agency,  when  he  was  in  truth  con- 
tracting with  A.  himself,  but  it  did  not  appear  that  the 
purchaser  would  not  have  contracted  on  the  same  terms 
with  A.,  or  that  he  had  sustained  any  injury  from  the  mis- 
take, the  contract  was  enforced.'     But  the  misrepresenta- 

'  Polhill  V.  Walter,  3  B.  &  Ad.,  1 14.     St&post,  §  337. 

2  Smith  V.  Clarke,  12  Ves.,  477,  484. 

3  Polhill  V.  Walter,  supra  ;  Morgan  v.  Bliss,  2  Mass.,  236  ;  Farrar  v.  Alston, 
I  Dev.,  69  ;  Young-  v.  Bumpass,  i  Freem.  (Miss.)  Ch.,  241  ;  Ide  v.  Gray,  11  Vt., 
615;  Clark  V.  White,  12  Pet.,  178;  Garrow  v.  Davis,  15  How.,  272;  Fuller  v. 
Hogden,  25  Me.,  243;  Abbey  v.  Dewey,  25  Pa.  St.,  413;  Bacon  v.  Bronson,  7 
Johns  Ch.,  201  ;  Turnbull  v.  Gadsden,  2  Strobh.  Eq.,  14 ;  Morrison  v.  Lods,  39 
Cal,  381  ;  Wells  v.  Millett,  23  Wis.,  64;  Scott  v.  Shiner,  27  N.  J.  Eq.,  185  ; 
Shaddle  v.  Disborough,  30  lb.,  370  ;  Fore  v.  McKenzie,  58  Ala.,  115.  A  repre- 
sentation by  the  vendor  of  land  to  the  purchaser  that  an  alley  on  the  premises 
was  only  a  private  right  of  way  for  a  few  persons,  when  in  fact  it  was  a  public 
way,  was  held  not  to  constitute  a  defence  to  a  suit  brought  by  the  vendor  for 
specific  performance.  Wuesthoff  v.  Seymour,  22  N.  J.  Eq.,  66.  The  soundness 
of  this  decision,  which  goes  to  the  extreme  verge  of  the  rule,  is  questionable  ;  a 
public  easement  being  more  burdensome  than  a  private  one  of  limited  extent. 

*  Story's  Eq.  Juris.,  Sec.  203. 

'  Fellowes  v.  Lord  Gwydyr,  i  Sim.,  63 ;  S.  C,  i  R.  &  M.,  83.  In  this  case, 
Sir  L.  Shadwell  said :  "  If  the  plaintiff  had  been  aware  that  the  defendant  Page 


440  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  3 19- 

tion  need  only  have  operated  to  the  prejudice  of  the  de- 
fendant to  a  small  extent  ; '  and  the  plaintiff  will  not  be 
entitled  to  specific  performance,  even  if  he  waive  the  fraud- 
ulent portion  of  it/ 

would  not  have  treated  with  any  other  person  than  Lord  Gwydyr,  and  for  that 
reason  had  concealed  his  own  interest  in  the  transaction,  the  relief  might  per- 
haps have  been  refused."  Lord  Lyndhurst,  in  affirming  the  decision,  said  that 
no  injury  to  Page  was  proved  ;  but  if  the  plaintiff  had  intended  to  injure  him  by 
the  misrepresentation,  it  would,  according  to  other  cases,  have  barred  his  right. 
See  Flint  v.  Woodin,  9  Hare,  618.  In  another  case,  the  judge  expressed  his 
opinion  that  a  person  who  attempted  to  deceive,  though  he  did'  not  succeed, 
could  not  obtain  the  extraordinary  assistance  of  the  court  in  a  suit  for  specific 
performance.  Lord  Langdale,  M.  R.,  in  Clapham  v.  Shiilito,  7  Beav.,  141. 
Where  the  plaintiff,  who  was  the  proprietor  of  a  preparation  of  tea  called 
Howqua's  Mixture,  filed  a  bill  to  restrain  the  defendant  from  selling  a  different 
mixture  under  the  same  name,  and  it  was  shown  that  the  plaintiff  had  made 
some  misrepresentations,  the  vice-chancellor  said:  "There  has  been  such  a 
degree  of  representation,  which  I  take  to  be  false,  held  out  to  the  public,  about 
the  mode  of  procuring  and  making  up  the  plaintiff's  mixture,  that,  in  my  opinion, 
a  court  of  equity  ought  not  to  interfere  to  protect  the  plaintiff  till  he  has  estab- 
lished his  right  at  law.  As  between  the  plaintiff  and  defendant,  the  course 
pursued  by  the  defendant  has  not  been  a  proper  one.  But  it  is  a  clear  rule 
laid  down  by  courts  of  equity  not  to  extend  their  protection  to  persons  whose 
case  is  not  founded  on  truth  ;  and  as  the  plaintiff  in  this  case  has  thought  fit  to 
mix  up  that  which  may  be  true  with  that  which  is  false,  in  introducing  his  tea 
to  the  public,  my  opinion  is,  that  unless  he  establishes  his  title  at  law,  the  court 
cannot  interfere  in  his  behalf"  Sir  L.  Shadwell,  V.  C,  in  Bidding  v.  How,  8 
Sim.,  477.  Approved  by  Lord  Langdale  in  Perry  V.  Truefit,  6  Beav.,  66.  See 
Hogg  v.  Kirby,  8  Ves.,  215  ;  Wright  v.  Tallis,  9  Jur.,  946. 

'  Cadman  v.  Horner,  18  Ves.,  10.  In  this  case,  the  court  said  :  "  Upon  the 
evidence,  the  plaintiff  has  been  guilty  of  a  degree  of  misrepresentation  oper- 
ating to  a  certain,  though  small  extent.  That  misrepresentation  disqualifies 
him  from  calling  for  the  aid  of  a  court  of  equity,  where  he  must  come,  as  it  is 
said,  with  clean  hands.  He  must,  to  entitle  himself  to  relief,  be  liable  to  no 
imputation  in  the  transaction."  Similar  language  was  used  in  Clermont  v. 
Tasburgh,  i  J.  &  W.,  112. 

"^  Harris  v.  Kemble,  i  Sim.,  1 11  ;  S.  C,  5  Bligh,  N.  S.,  730,  751.  In  a  case  where 
the  question  arose  whether  the  misrepresentation  avoided  the  entire  contract,  or 
only  the  part  affected  by  the  misrepresentation,  Sir  Thomas  Plumer  said : 
"  There  is  no  authority  anywhere,  no  case  where  the  court  has,  when  misrepre- 
sentation was  the  ground  of  a  contract,  decreed  the  specific  performance  of 
it ;  and  nothing  would  be  more  dangerous  than  to  entertain  such  a  jurisdic- 
tion. The  principle  upon  which  performance  of  an  agreement  is  compelled, 
requires  that  it  must  be  clear  of  the  imputation  of  any  deception.  The  con- 
duct of  the  person  seeking  it  must  be  free  from  all  blame.  Misrepresentation, 
even  to  a  small  part  only,  prevents  him  from  applying  here  for  relief.  The 
reason  of  this  is  obvious.  If  it  be  so  obtained,  the  contract  is  void  both  at  law 
and  in  equity.  Where  an  agreement  has  been  obtained  by  fraud,  is  the  effect 
to  alter  it  partially,  to  cut  it  down,  or  modify  it  only  .'*  No,  it  vitiates  it,  zn  toto  ; 
and  the  party  who  has  been  drawn  in  is  totally  absolved  from  obligation.  If 
so,  what  equity  has  the  other  party,  who  by  his  misconduct  has  lost  one  con- 
tract, to  call  on  the  court  for  his  benefit  to  make  a  new  one  ?  If  the  defend- 
ant were  willing  to  consent  to  it,  and  to  enter  into  a  new  agreement,  it  would  be 
a  different  case.  But  if  he  refuses,  if  he  insists  that  he  is  absolved  from  it, 
what  equity  can  there  be  in  favor  of  the  other.''  "     Clermont  v.  Tasburgh,  i  J. 


§  320.  FRAUD    HOW    TREATED    IN    EQUITY.  44 1 

§  320.  Fraud  how  treated  in  equity. — The  term  fraud  has  a 
more  extensive  signification  than  misrepresentation,  which 
has  been  considered  in  the  preceding  sections  of  this  chap- 
ter. For  fraud,  in  the  contemplation  of  a  court  of  equity, 
may  be  said  to  include  all  acts  of  trick,  cunning,  dissem- 
bling, or  other  deceitful  practice,  involving  a  breach  of  legal 
or  equitable  duty,  trust,  or  confidence  justly  reposed,  by 
which  an  undue  or  unconscientious  advantage  is  taken  of 
another  to  his  injury/  The  devices  by  which  fraud  may  be 
committed  are  so  various,  it  is  impossible  to  lay  down  any 
general  proposition  defining  what  shall  constitute  it.  It 
has  been  truly  said  that  "fraud  is  infinite;  and  were  a 
court  of  equity  to  lay  down  rules  how  far  they  would  go, 
and  no  further,  in  extending  their  relief  against  it,  or  to  de- 
fine strictly  the  species,  or  evidence,  of  it,  the  jurisdiction 
would  be  cramped,  and  perpetually  eluded  by  the  new 
schemes  which  the  fertility  of  man's  invention  would  con- 

&  W.,  112.  Where  A.  contracted  to  sell  to  B,  a  tract  of  land  which  he  repre- 
sented contained  two  hundred  and  sixty  acres,  and  for  which  he  held  a  warrant, 
when  in  fact  he  only  held  a  warrant  for  seventy  acres,  and  the  vendee  paid  for 
the  whole  tract,  and  the  vendor  afterward  obtained  a  title  to  the  residue,  it  was 
held  in  an  action  of  ejectment  in  the  nature  of  a  bill  for  specific  performance, 
that  the  purchaser  was  entitled  to  recover  the  part  thus  subsequently  acquired. 
Tyson  v.  Passmore,  2  Pa.  St.,  122.  Where  a  vendor  gave  a  title  bond  for  land, 
fraudulently  representing  that  the  land  was  unincumbered,  there  being  at  the 
time  a  mortgage  on  it,  and  took  the  vendee's  notes  for  the  purchase  money,  and 
the  vendee  filed  a  bill  for  the  legal  title,  when  it  appeared  that  the  t^mount 
paid  by  the  complainant  and  the  mortgagee  equalled  the  price  to  be  paid,  it  was 
held  that  the  complainant  was  entitled  to.  a  conveyance.  Rodman  v.  Williams, 
4  Blackf.,  72.  A  contract  will  not  be  specifically  enforced  when  there  was  a 
subsequent  parol  agreement  to  waive  it  and  substitute  for  it  a  new  contract. 
Ryno  V.  Darby,  20  N.  J.  Eq.,  231.  But  where  a  written  contract  is  varied  by 
parol,  after  its  execution,  otherwise  than  as  to  title  and  the  time  for  completion, 
the  variation,  to  constitute  a  defence,  must  be  accompanied  by  such  a  part  per- 
formance as  would  enable  the  court  to  enforce  it  if  it  were  an  original  independ- 
ent agreement.  Price  V.  Dyer,  17  Ves.,  356;  Robinson  v.  Page,  3  Russ.,  114. 
A  court  of  equity  will  not  ordinarily  compel  the  specific  performance  of  a  con- 
tract with  variations  or  additions,  or  new  terms  to  be  made  and  introduced  into 
it  by  parol  evidence.  For,  in  such  a  case,  the  attempt  is  to  enforce  a  contract 
partly  in  writing,  and  partly  by  parol ;  and  the  writing  is  deemed  to  be  higher 
evidence  of  the  real  intentions  of  the  parties  than  parol  proof  can  generally  be, 
independently  of  the  objection  which  arises  under  the  statute  of  frauds.  Whit- 
aker  V.  Vanschoiack,  5  Oregon,  113. 

I  I  Fonbl.  Eq.,  Book  i,  Ch.  2,  Sec.  3  ;  Green  v.  Nixon,  23  Beav.,  535;  Brom- 
ley V.  Smith,  26  lb.,  671  ;  Garth  v.  Cotton,  3  Atk,,  757  ;  Kennedy  v.  Kennedy, 
3  Ala.,  571  ;  Belcher  v.  Belcher,  10  Yerg,,  121  ;  Gale  v.  Gale,  19  Barb.,  249; 
Smith  V.  Richards,  13  Peters,  36;  Laidlaw  v.  Organ,  2  Wheat.,  195  ;  Tyler  v 
Black,  13  How.,  231. 


442  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  32O. 

trive."  '  And  again  it  was  said,  "  the  court  very  wisely  hath 
never  laid  down  any  general  rule  beyond  which  it  will  not 
go,  lest  other  means  for  avoiding  the  equity  of  the  court 
would  be  found  out."'  With  the  exception  of  fraud  in 
obtaining  a  will,  courts  of  law  and  equity  have  concurrent 
jurisdiction  of  every  species  of  fraud  not  penal.'  There  are, 
however,  many  cases  of  fraud  which  are  not  cognizable  at 
law,  or  in  which  the  remedy  at  law  is  wholly  inadequate ; 
while,  with  the  exception  mentioned  above,  equity  takes 
notice  of  every  kind  of  fraud."  "  In  order  to  constitute 
fraud  at  common  law,  it  is  not  enough  to  show  that  fraud, 
in  the  sense  of  misrepresentation  and  undue  advantage  of 
the  position  of  the  parties  said  to  be  imposed  upon,  has 
been  committed  ;  but  the  extent  of  the  fraud  must  be 
brought  home  to  the  party  to  the  action  who  is  charged 
with  it.  In  the  case  of  fraud  in  the  sense  of  a  court  of 
equity,  a  court  of  equity  will  take  into  account  all  the  cir- 
cumstances of  the  case — not  only  the  act  and  intention  of 
the  party,  but  the  circumstances  under  which  the  act  was 
done  ;  the  position  of  the  party  who  is  said  to  be  imposed 
upon  ;  his  being  inops  consilii ;  his  being  in  a  state  of 
bodily,  and  therefore  mental,  weakness,  and  so  on.  Non 
constat  these  are  sufficient  to  constitute  legal  fraud."  ^  The 
power  of  equity  to  afford  relief  to  the  fullest  extent,  and  in 
every  detail,  and  to  restore  the  party  deceived  as  nearly  to 
the  position  he  would  have  occupied  but  for  the  fraud, 
often  causes  the  court  to  exercise  its  jurisdiction  notwith- 
standing there  is  a  remedy  at  law." 

'  Parke's  Hist,  of  Chanc,  508. 

"^  Lawley  v.  Hooper,  3  Atk.,  278,  per  Lord  Hardwicke. 

^  Crane  v.  Conklin,  Saxton,  346  ;  White  v.  Jones,  4  Call,  253 ;  Poore  v.  Price, 
5  Leig-h,  52;  Haden  v.  Garden,  7  lb.,  157;  Allen  v.  Hopson,  Freeman  (Miss.) 
Ch.,  276  ;  Boreing  v.  Singery,  4  Har.  &  Mchen.,  398  ;  Smith  v.  Mclver,  9  Wheat., 
532  ;  Bacon  v.  Bronson,  7  Johns  Ch.,  201. 

■*  Colt  V.  Woolaston,  2  P.  Wms.,  156;  Stent  v.  Bailis,  lb.,  219;  Franks  v. 
Weaver,  10  Beav.,  297  ;  Glasse  v.  Marshall,  15  Sim.,  71  ;  Jones  v.  Bolles,  9  Wall, 
364;  Phalen  v.  Clark,  19  Conn.,  421. 

"  Kindersley,  V.  C,  in  Stewart  v.  Gt.  Western  R.R.  Co.,  2  Dr.  &  Sm.,  438  ;  11 
Jur.  N.  S.,  627. 

Bright  V.  Eynon,   i    Burr.,  396;  Slim  v.   Croucher,  i    De  G.  F.  &  J.,  523; 
Stump  V.  Gaby,  2  De  G.  M.  &  G.,  630. 


§321.  PROOF    OF    FRAUD.  443 

§  321.  Proof  of  fraud. — Where  relief  is  sought  on  the 
ground  of  fraud,  the  burden  of  proof  is  on  him  who  alleges 
it,  and  the  fraud  must  be  proved  as  alleged.'  But  if  there 
are  other  grounds  of  relief,  and  the  fraud  is  not  made  out, 
relief  may  be  granted  in  respect  to  such  other  matters  when 
proved."  To  establish  the  charge  of  fraud,  the  proof  must 
be  clear  and  conclusive,  and  circumstances  of  mere  suspicion 
are  not  sufficient.'  Fraud  may,  however,  be  established  by 
circumstantial  evidence.  "A  deduction  of  fraud  may  be 
made  not  only  from  deceptive  assertions  and  false  repre- 
sentations, but  from  facts,  incidents,  and  circumstances 
which  may  be  trivial  in  themselves,  but  may,  in  a  given 
case,  often  be  decisive  of  a  fraudulent  design."*  Where  a 
prima  facie  case  of  fraud  is  made  out,  the  burthen  of 
showing  that  the  transaction  was  fair  rests  upon  the  party 
who  stands  by  it.'  In  cases  of  fiduciary  or  confidential  re- 
lations subsisting  between  the  parties,  the  burthen  of  proof 


'  Blair  v.  Bromley,  5  Hare,  559 ;  Jennings  v.  Broughton,  17  Beav,,  234 ;  Bur- 
ton V.  Blakemore,  2  Jur.,  1062  ;  Lomax  v.  Ripley,  24  L.  J.  Ch.,  254;  Smith  v. 
Kay,  7  House  of  Lds.,  750  ;  Mowatt  v.  Blake,  31  L.  T.,  387  ;  Brock  v.  McNaugh- 
trey,  5  Mon.,  216  ;  Gibson  v.  Randolph,  2  Munf.,  310  ;  Gerde  v.  Hawkins,  2  Dev. 
Eq.,  393  ;  Blaisdell  v.  Cowell,  14  Me.,  370;  Eyre  v.  Potter,  15  How.,  42. 

^  Wilde  V.  Gibson,  i  House  of  Lds.,  607  ;  Archbold  v.  Commrs.  of  Charitable 
Bequests,  2  lb.,  440;  Billage  v.  Southee,  9  Hare,  535  ;  Espey  v.  Lake,  10  Hare, 
260 ;  Baker  v.  Bradley,  7  De  G.  M.  &  G.,  597  ;  Traill  v.  Baring,  33  L.  J.  Ch., 
521. 

*  Trenchard  v.  Wanley,  2  P.  Wms.,  166  ;  M'Oueen  v.  Farquhar,  11  Ves.,  467  ; 
Walker  v.  Symonds,  3  Swanst.,  61  ;  Hamilton  v.  Kirwan,  2  J.  &  L.,  401  ;  Smith 
V.  Pawson,  25  L.  T.,  40  ;  Bowen  v.  Evans,  2  House  of  Lds.,  257  ;  Pike  v.  Vigers, 
2  D.  &  W.,  267 ;  Sanborn  v.  Stetson,  2  Story,  481 ;  Hamilton  v.  Beal,  2  Har.  & 
Johns,  414;  Petrie  v.  Wright,  6  Sm.  &  Marsh,  642;  Casey  v.  Allen,  i  A.  K. 
Marsh,  465;  Buck  v.  Sherman,  2  Dougl.,  176;  Gregg  v.  Sayres,  8  Pet.,  244; 
Clark  V.  White,  12  lb.,  178.  To  set  aside  a  deed,  or  give  it  a  diflferent  effect 
from  that  which  it  naturally  and  legally  imports,  so  far  as  the  grantee  or  his 
legal  representatives  are  concerned,  would,  against  the  defendant's  answer,  re- 
quire not  only  the  allegation,  but  the  most  unequivocal  evidence  of  fraud  on  the 
part  of  the  grantee.     Watkins  v.  Stockett,  6  Har.  &  Johns,  435. 

*  2  Kent's  Com.,  484.  Where  there  was  no  direct  proof  that  a  subsequent 
purchaser  had  knowledge  of  a  previous  sale,  but  the  circumstances  were  strongly 
indicative  of  fraud  on  the  part  of  the  vendor  and  subsequent  purchaser,  specific 
performance  was  decreed  in  behalf  of  the  original  vendee.  Rogers  v.  Odell,  36 
Mich.,  411.     See  Masterson  v.  Pullen,  62  Ala.,  145. 

^  Watt  V.  Grove,  2  Sch.  &  Lef.,  502  ;  Russell  v.  Jackson,  10  Hare,  213 ;  I*rince 
of  Wales  Assurance  Co.  v.  Palmer,  25  Beav.,  605.  The  fact  that  a  party  had 
the  advantage  in  the  transaction,  without  proof  of  fraud,  will  not  defeat  his  peti- 
tion in  equity.     Union  Coal  Mining  Co.  v.  McAdams,  38  Iowa,  663. 


444  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  322. 

is  on  the  party  in  whom  confidence  was  reposed,  to  show 
the  fairness  of  the  transaction.'  Where  proof  has  been  in- 
troduced to  show  that  a  deed  was  fraudulently  obtained, 
the  party  claiming  under  the  deed  must  prove  that  the  con- 
tents of  the  deed  and  their  nature  and  effect  were  under- 
stood by  the  other  party.'  Whether  fraud  is  established  by 
the  proof,  is  a  question  of  law  for  the  court.' 

§  322.  How  fraud  divided. — Fraud  may  be  actual,  aris- 
ing directly  from  facts  and  circumstances  of  imposition  ;  or 
constructive,  that  is,  presumed  from  the  nature  of  the 
transaction  or  the  relations  of  the  parties.  Fraud  in  mat- 
ters of  contract  was  divided  by  Lord  Hardwicke,^  into  four 
heads  :  ist.  Actual  fraud  arising  from  facts  and  circum- 
stances of  imposition  ;  2d.  Fraud  arising  from  the  intrinsic 
nature  and  subject  of  the  bargain  ;  3d.  Fraud  presumed  from 
the  circumstances  of  the  bargain  ;  4th.  Fraud  inferred  from 
the  circumstances,  and  affecting  some  third  person  not  a 
party  to  the  transaction.' 


*  Matter  of  Holmes'  Estate,  3  Giflf.,  347  ;  Walker  v.  Smith,  20  Beav.,  394; 
Dalton  V.  Dalton,  14  Nevada,  419. 

^  Moore  v.  Prance,  9  Hare,  304;  Anderson  v.  Ellsworth,  3  Giff.,  154;  Davies 
V.  Davies,  4  lb.,  417  ;  Cartledge  v.  Radbourne,  14  W.  R.,  604;  Selden  v.  Myers, 
20  How.,  506  ;  Owing's  Case,  i  Bland  Ch.,  370.  See  Harris  v.  Delahar,  3  Ired. 
Eq.,  213  ;  Michael  v.  Michael.  4  lb.,  349;  Stamps  v.  Bracy,  i  How.  Miss.,  312. 

*  Beers  v.  Botsford,  13  Conn.,  146  ;  Pettibone  v.  Stevens,  15  lb.,  19. 
^  In  Chesterfield  v.  Janssen,  2  Yes.  Sen.,  125. 

"  A  court  of  equity  will  refuse  specific  performance  of  a  contract  procured  by 
fraud  of  the  complainant.  Harris  v.  Smith,  2  Coldw.,  306  ;  Clement  v.  Reid,  9 
Sm.  &  Marsh,  535  ;  Rogers  v.  Mitchell,  41  N.  H.,  154;  Margraf  v.  Muir,  57  N. 
Y.,  155.  Where  a  father  deeded  land  to  his  daughter  as  a  gift,  and  afterward 
got  possession  of  the  deed  fraudulently  and  destroyed  it,  the  deed  was  restored 
to  its  legal  force.  Ward  v.  Webber,  i  Wash.,  274.  So,  where  a  donor,  after 
execution  and  delivery  of  a  deed,  obtained  possession  of  it  without  the  consent 
of  the  donee  before  it  was  recorded,  it  was  held  that  the  donee  was  entitled  to 
call  upon  the  donor  for  a  conveyance  of  the  legal  estate.  Tyson  v.  Harrington, 
6  Ired.  Eq.,  329.  A.  gave  a  bond  to  B.  to  convey  land  to  him  upon  payment  of 
the  purchase  money.  B.  sold  to  C.  at  the  same  price,  and  C.  paid  the  money  to 
B.,  who  paid  it  to  A.,  whereupon  B.,  to  defeat  C.'s  purchase,  surrendered  the 
bond  to  A.,  who  had  notice  of  C.'s  purchase,  and  absconded.  Held  that  C.  might 
compel  A.  to  convey.  Ward  v.  Ledbetter,  i  Dev.  &  Batt.  Eq.,  496.  The  courts 
of  the  United  States  will  not  enforce  a  contract  clearly  in  fraud  of  a  law  of  the 
United  States,  where  no  just  exception  can  be  taken  to  such  law.  Hannay  v.  Eve, 
3  Cranch,  242.  When  a  contract  is  tainted  with  fraud,  the  ground  of  relief  is 
not  that  the  writing  does  not  express  the  intention  of  the  parties,  but  that  there 
was  no  agreement.  In  such  a  case  there  can  be  no  reformation,  for  the  reason 
that  there  is  no  contract  to  which  the  parties  have  assented,  and  to  which  the 


§  ^2^.  PROOF    OF    INVALIDITY    OF    WRITING.  445 

§323,  Proof  of  invalidity  of  writing. — Parol  evidence 
will  be  admitted  to  control  the  operation  of  a  deed  or  other 
written  contract  in  itself  complete  and  intelligible,  in  case 
of  fraud,  of  which  the  injured  party  may  avail  himself  in  a 
court  of  law,  as  well  as  in  a  court  of  equity ;  and  such  evi- 
dence is  admissible  where  a  party  applies  to  a  court  of  equity 
to  enforce  a  written  contract,  and  the  adverse  party  is  allowed 
to  show  by  testimony,  that  the  instrument  relied  upon  does 
not  contain  the  true  agreement  of  the  parties,  or  the  whole 
of  it/  In  the  latter  case,  the  court  will  withhold  the  exer- 
cise of  its  power,  unless  the  party  seeking  relief  will  do  full 
justice  to  the  other  party  according  to  the  facts  which  are 
made  to  appear  to  the  court.'  But  oral  contemporaneous 
evidence  is  not  admissible  to  contradict  the  terms  of  a  writ- 
ten agreement,  or  substantially  vary  the  legal  import  there- 
of, provided  the  instrument  is  valid,  and  the  parties  designed 
to  execute  it  in  its  existing  form.'     The  fraud  which  will 

writing  can  be  made  to  conform.  Where  a  person  is  induced  to  forego  the  mak- 
ing of  a  will,  by  the  promise  of  another,  equity  will  enforce  the  obligation  on  the 
ground  of  fraud.  Norton  v.  Mallory,  63  N.  Y.,  434;  S.  C,  i  Hun.,  499  ;  3  T.  & 
C.,  640.  A  cause  of  action  based  on  fraud,  is  different  from  that  founded  on  a 
mistake  merely,  and  one  cannot  be  substituted  on  the  trial  for  the  other.  Ross 
V.  Mather,  51  N.  Y.,  108  ;  Burnham  v.  Walkup,  54  lb.,  656 ;  Hadley  v.  Scranton, 
57  lb.,  424. 

^  Nelson  v.  Wood,  62  Ala.,  175.  In  Pennsylvania,  great  latitude  is  allowed  in 
the  admission  of  parol  proof  to  reform,  modify,  and  even  to  extinguish  a  written 
instrument,  in  cases  of  fraud,  mistake,  or  trust.  In  that  State,  the  rule  seems  to 
have  been  established,  that  such  evidence  is  admissible  to  show  the  acts  or  decla- 
rations of  the  parties  at  or  about  the  time  of  the  execution  of  the  writing,  unless 
it  expressly  contradict  the  instrument.  Rearich  v.  Svvinehart,  1 1  Pa.  St.,  233  ; 
and  that  a  deed  or  other  instrument,  absolute  on  its  face,  may  be  controlled  or 
otherwise  defeated  by  a  contemporaneous  verbal  understanding.  The  power  of 
a  court  of  equity  to  cancel  an  executed  contract  ought  not  to  be  exercised  except 
in  a  clear  case,  and  never  for  an  alleged  fraud,  unless  the  fraud  is  made  clearly 
to  appear ;  nor  for  alleged  false  representations,  unless  their  falsity  is  certainly 
proved,  and  the  complainant  has  been  deceived  and  injured  by  them.  Atlantic 
Delaine  Co.  v.  James,  4  Otto,  207. 

^  Dwight  v.  Pomeroy,  17  Mass.,  303. 

^  Where  specific  performance  of  a  written  contract  was  sought,  and  it  was  re- 
sisted on  the  ground  that  the  agreement  actually  entered  into  differed  from  the  one 
in  writing,  it  was  held  that  the  suit  could  not  be  successfully  defended  without 
showing  that  the  difference  was  occasioned  by  fraud,  accident,  mistake,  or  sur- 
prise. Stoutenburgh  v.  Tompkins,  9  N.  J.  Eq.  (i  Stockton),  332.  Where  an  agree- 
ment for  the  sale  of  land  is  certain  upon  its  face,  and  the  bill  charges  neither 
fraud  nor  mistake  in  its  execution,  its  terms  cannot  be  changed  by  proof  of  a  parol 
contemporaneous  agreement  that  the  purchase  money  was  not  to  be  paid  at  the 
time  specified  in  the  written  contract,  but  to  await  a  settlement  of  accounts  be- 
tween the  parties.     Ware  v.  Cowles,  24  Ala.,  446, 


446  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  324. 

let  in  such  proof,  must  be  fraud  in  tiie  procurement  of  the 
instrument  affecting  its  validity,  or  some  breach  of  confi- 
dence in  using  a  paper  delivered  for  one  purpose,  and  fraudu- 
lently perverting  it  to  another.  In  such  cases,  the  oral  evi- 
dence tends  to  prove  independent  facts,  which,  if  established, 
avoid  the  effect  of  the  written  agreement  by  facts  dehors 
the  instrument,  but  do  not  attempt  to  contradict  or  vary  it.' 
§  324.  Portion  of  agreement  fratididently  oiuitted. — 
Upon  proof  of  fraud  in  the  omission  of  material  stipula- 
tions in  a  written  contract,  a  court  of  equity  will  admit  parol 
evidence  to  establish  the  agreement  as  it  was  understood 
and  concluded  between  the  parties,  and,  after  reforming  the 
contract  according  to  the  truth,  will  proceed  to  enforce  it' 
A  bill  alleged  that  the  defendants  agreed  to  insert  in  the 
deed  from  them  to  the  plaintiff  a  covenant  that  the  land 
conveyed  contained  seven  acres,  and,  if  it  fell  short  of  that 
quantity,  they  would  make  good  the  deficiency  ;  that  a  deed 
was  drawn  containing  such  a  covenant,  and  that  the  defend- 
ants erased  it  fraudulently,  and  without  the  plaintiff's  knowl- 
edge, and  induced  him,  by  false  representations,  to  accept 
the  deed  in  the  belief  that  the  clause  as  originally  inserted 
was  embraced  in  the  conveyance  as  executed  and  delivered 
by  them.  These  allegations  having  been  found  to  be  true, 
it  was  held  that  the  plaintiff  was  entitled  to  have  the  deed 
reformed  so  as  to  set  forth  the  whole  contract.'  Where  the 
owner  of  land  bounded  on  the  Hudson  River,  secretly  in- 
tending to  sell  the  lot  as  it  originally  existed,  made  the  pur- 
chaser believe  that  he  was  also  buying  a  wharf  on  the  lot, 
or  adjacent  thereto,  and  the  wharf  was  not  included  in 
the  conveyance,  the  vendee  having  paid  the  vendor  the 
price  of  the  whole  property,  it  was  held  that  he  was  entitled 

'  Towner  v.  Lucas,  13  Gratt.,  705;  Broughton  v.  Coffer,  18  lb.,  184.  Series 
of  facts  constituting  an  adverse  equity,  where  a  recognition  of  these  is  necessary 
to  defeat  fraud.  Hartzel  v.  Reiss,  I  Binney,  289 ;  Park  v.  Chadwick,  8  Watts  & 
Serg.,  98 ;  Miller  v.  Henderson,  10  Serg.  &  R.,  290 ;  Clark  v.  Partridge,  2  Barr, 
13;  S.  C,  4  lb.,  166. 

"  Dwight  V.  Pomeroy,  supra  ;  Phyfe  v.  Wardell,  2  Edw.  Ch.,  47. 

*  Metcalf  V.  Putnam,  9  Allen,  97. 


§  325-  FRAUDULENT    USE    OF    WRITING.  447 

to  a  decree  for  the  conveyance  of  the  whole  ;  but  that  as 
the  wife  of  the  vendor  executed  the  deed  in  good  faith,  sup- 
posing that  it  did  not,  and  that  the  vendee  knew  that  it  did 
not  embrace  the  wharf,  she  would  not  be  compelled  to  join 
in  the  conveyance/  A  purchase  is  made  of  a  lot  which  at 
the  time  is  inclosed.  The  inclosure  is  fifty-one  feet  deep  ; 
but  the  lot,  w^ithout  having  been  measured  by  the  purchaser, 
is  described  in  the  contract  as  well  as  in  the  deed,  as  being 
but  forty-seven  feet  in  depth.  The  purchaser  takes  posses- 
sion of  all  within  the  inclosure  ;  but  the  vendor  subsequently 
removes  the  fence  so  as  to  exclude  four  feet  of  the  original 
lot,  insisting  that  the  purchaser  still  had  all  that  her  convey- 
ance calls  for.  The  purchaser  brings  an  action  of  ejectment 
and  offers  parol  evidence  of  the  circumstances  and  terms  of 
the  bargain.  Held  that  such  evidence  is  admissible  to  show 
fraud  on  the  part  of  the  vendor.* 

§  325.  Fraudulent  tise  of  writing, — A  court  of  equity 
will  interfere  to  prevent  the  fraudulent  use  of  a  written  in- 
strument for  a  purpose  not  contemplated  when  it  w^as  made, 
where  there  was  no  mistake  or  fraud  in  its  execution ;  and 
it  makes  no  difference  that  the  instrument  has  been  record- 
ed.' Accordingly,  where  it  was  shown  that  during  a  nego- 
tiation for  the  lease  of  a  building  it  was  verbally  agreed  be- 
tween the  parties  that  only  the  building  in  its  then  condi- 

^  Wiswall  V.  Hall,  3  Paige  Ch.,  313. 

^  Flagler  v.  Pleiss,  3  Rawle,  345.  But  see  Elder  v.  Elder,  10  Me.,  80, 
^  Young  V.  Peachey,  2  Atk.,  256 ;  Oliver  v.  Rowland,  4  Rawle,  141  ;  Thomson 
V.  White,  I  Dallas,  424;  Campbell  v.  M'Clanachan,  6  Serg.  &  Rawle,  172  ;  Lyon 
V.  Huntington  Bank,  14  lb.,  283;  Hultz  v.  Wright,  16  lb.,  345.  "It  is  enough, 
that  though  the  parties  acted  in  mutual  good  faith  at  the  inception  of  the  trans- 
action, an  attempt  is  made  to  wrest  the  instrument  to  a  different  purpose  not 
contemplated,  or  to  use  it  in  violation  of  the  accompanying  agreement.  It  is  as 
much  a  fraud  to  obtain  a  paper  for  one  purpose,  and  to  use  it  for  a  different  and 
unfair  purpose,  as  to  practice  falsehood  or  deceit  in  its  procurement.  The  primary 
honesty  of  purpose  but  adds  to  the  moral  turpitude  of  the  subsequent  efforts  to 
escape  from  it;  or,  when  moral  guilt  cannot  be  imputed,  a  legal  delinquency  at- 
taches upon  an  attempted  abuse  of  the  writing,  sufficient  to  subject  it  to  the  in- 
fluence of  the  oral  evidence."  Bell,  J.,  in  Rearich  v.  Swinehart,  11  Pa.  St.,  233. 
And  see,  to  the  same  effect,  Parks  v.  Chadwick,  8  Watts  &  Serg.,  96.  Where 
A.  purchases  real  estate  from  B.,  and  C.  having  loaned  A.  money  to  pay  for  the 
land,  B.,  by  agreement  of  all  the  parties,  conveys  to  C,  who  gives  a  bond  for 
title  upon  repayment  of  the  money  loaned,  and  interest,  specific  performance  of 
the  agreement  will  be  decreed.     Archer  v.  McCray,  59  Ga.,  546, 


448  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §   325. 

tion  was  to  be  embraced  ir  the  lease  ;  that  the  lessor  was  to 
have  the  right  to  have  the  second  story  for  his  own  use ; 
that  the  lessees  procured  the  lease  to  be  written,  and  when 
it  was  read  to  the  lessor  he  objected  to  signing  it  because 
it  did  not  reserve  his  right  to  erect  the  second  story ;  that 
the  lessees  replied  that  it  would  make  no  difference  whether 
the  right  w^as  reserved  in  the  lease  or  not,  as  it  was  agreed 
that  the  lessor  was  to  have  the  right ;  that  upon  these  as- 
surances, he  signed  the  lease  ;  and  that  the  second  story  was 
afterward  built  without  objection  from  the  lessees,  and 
without  any  claim  being  then  made  to  it  by  them,  but  with 
their  assent  and  approval  ;  in  an  action  of  ejectment, 
brought  by  the  lessees  to  recover  the  second  story,  the 
court,  upon  a  cross  complaint,  filed  by  the  lessor,  alleging 
these  facts,  directed  the  lease  to  be  reformed  and  judgment 
to  be  rendered  for  him.'  In  a  sale  of  land  by  A.  to  B.,  a 
portion  of  the  purchase  money  was  paid  in  land,  and  a  note 
given  for  the  balance  secured  by  a  mortgage  on  the  land, 
with  a  provision  that  if  B.  should  fail  to  pay  the  note  at 
maturity,  B.  should  reconvey  the  land  to  A.,  and  the  latter 
surrender  the  note.  Afterward  B.,  not  being  able  to  pay 
the  note,  it  was  mutually  agreed  that  the  sale  should  be  re- 
scinded, and  that  as  the  deed  and  mortgage  had  not  been 

'  Murray  v.  Dake,  46  Cal.,  644.  In  Renshaw  v.  Gans,  7  Pa.  St.,  117,  the  court 
said :  "  All  the  cases  show  that  to  pave  the  way  for  the  reception  of  oral  decla- 
rations, it  is  not  necessary  to  prove  that  a  party  was  actuated  by  a  fraudulent  in- 
tention at  the  time  of  the  execution  of  the  writing.  His  original  object  may  have 
been  perfectly  honest  and  upright.  But  if,  to  procure  an  unfair  advantage  to 
himself,  he  subsequently  deny  a  parol  qualification  of  the  written  contract,  it  is 
such  a  fraud  as  will,  under  the  rules,  operate  to  let  in  evidence  of  the  real  intent, 
and  final  conclusion  of  the  contractors."  Parol  evidence,  to  show  that  a  deed, 
absolute  on  its  face,  was  intended  as  a  mortgage,  or  other  conditional  convey- 
ance, without  proof  of  fraud,  or  mistake  in  its  execution,  or  in  the  consideration, 
is  not  admissible.  But  if  the  answer  admit  that  the  contract  was  intended  to  be 
conditional,  or  in  trust  to  any  extent  or  for  any  purpose,  the  complainant  may 
prove  by  parol  the  true  condition  or  trust.  A  statement,  however,  in  the  answer 
that  the  consideration  was  larger  than  that  recited  in  the  deed,  will  not  author- 
ize parol  testimony  to  show  that  the  contract  was  not  a  sale,  but  a  mortgage, 
in  contradiction  to  both  the  deed  and  the  answer.  A  recital  in  the  conveyance 
is  not  conclusive  evidence  as  to  the  question  whether  the  consideration  has  been 
paid,  or  only  agreed  to  be  paid.  Nor  can  the  circumstance  that  a  deed  recites  a 
consideration  either  larger  or  smaller  than  that  which  was  actually  given,  alter 
the  character,  or  impair  the  conclusive  effect  of  the  instrument  as  a  document  of 
title.     Thomas  v.  McCormack,  9  Dana,  108. 


§§  3-6'   Z'^7'  FRAUD    SHOWN    BY    INSUFFICIENCY.  449 

recorded,  a  destruction  of  them  and  of  the  note  would  effect 
that  object.  A.,  however,  died  before  anything  could  be 
done  in  the  matter,  and  B.,  having  caused  the  deed  to  be 
recorded,  sold  the  land  to  C,  his  brother-in-law,  for  one- 
third  its  value,  he  being  acquainted  with  all  the  circum- 
stances. Soon  after,  concealing  from  the  administrator  of 
A.  the  fact  that  B.  had  caused  the  deed  to  be  recorded, 
they  united  in  burning  the  deed,  note,  and  mortgage.  It 
was  held  that  a  decree  must  be  entered  cancelling  the  deed 
from  A.  to  B.,  and  its  fraudulent  registration,  and  the  deed 
from  B.  to  C 

§  326.  How  fraud  affects  rights  of  third  person. — Un- 
der the  rule  that  to  entitle  a  person  to  specific  performance, 
he  must  be  a  claimant  for  value,  "where  once  a  fraud  has 
been  committed,  not  only  is  the  person  who  has  committed 
the  fraud  precluded  from  deriving  any  benefit  from  it,  but 
every  other  person  is  so  likewise,  unless  there  has  been  some 
consideration  moving  from  himself.  If  there  has  been  con- 
sideration moving  from  a  third  person,  and  he  was  ignorant 
of  the  fraud,  such  third  person  stands  in  the  ordinary  con- 
dition of  a  purchaser  without  notice.  But  where  there  has 
been  no  consideration  moving  from  himself,  a  third  person, 
however  innocent,  can  derive  no  sort  of  benefit  or  advantage 
from  the  transaction."  ° 

§  327.  Fraud  shown  by  insufficiency  of  consideration. 
— The  consideration  may  be  so  grossly  inadequate  as  to  be 
evidence  of  fraud ;  for  it  cannot  be  presumed  that  any  one 
of  ordinary  intelligence  would  make  such  a  bargain,  unless 
deceived  or  subject  to  undue  influence.'     In  a  case  of  that 

'  Neal  V.  Speigle,  33  Ark.,  63. 

■■^  Wood,  V.  C,  in  Scholfield  v.  Templer,  Johns,  156;  Berry  v.  Whitnev,  40 
Mich.,  65. 

^  See  Gwynne  v.  Heaton,  i  Bro.  C.  C,  8 ;  Haygarth  v.  Wearing,  L.  R.  12,  Eq. 
320;  James  v.  Morgan,  i  Lev.,  iii  ;  Butler  v.  Haskell,  4  Dessaus  Eq.,  651  ;  Os- 
good V.  Franklin,  2  Johns  Ch.,  i  ;  Gifford  v.  Thorn,  9  N.  J.  Eq.  (i  Stockton), 
702;  Coffee  V.  Ruffin,  4  Coldw.,  507;  Byers  v.  Surget,  19  How.,  303;  Wright  v. 
Wilson,  2  Yerg.,  294;  Hardeman  v.  Burge,  10  lb.,  202;  Deaderich  v.  Watkins, 
8  Humph.,  520;  Judge  V.  Wilkins,  19  Ala.,  765;  Warner  v.  Daniels,  i  Wood- 
bury &  Minot,  90;    Morris  v.  Philliber,  30  Mo.,  145.     A  complainant  seeking 

29 


450  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  328. 

character  the  relief  is  granted,  not  on  account  of  the  inade- 
quacy of  the  consideration,  but  on  the  ground  of  fraud  as 
shown  thereby.'  Where  a  contract  by  fraud  or  mistake  is 
made  to  include  more  than  the  vendor  agreed  to  sell,  it 
cannot  be  enforced  against  him  in  equity,  although  the 
average  estimate  of  witnesses  makes  the  value  of  the  prop- 
erty no  more  than  was  to  be  paid.  The  vendor  has  a  right 
to  put  his  own  price  upon  his  property,  instead  of  having 
it  fixed  for  him  by  witnesses."  But  if  no  fraud  is  shown, 
the  fact  that  the  property  has  depreciated  in  value  since  the 
sale  is  no  cause  for  the  interference  of  a  court  of  equity  in 
behalf  of  the  purchaser.  Where,  between  the  time  of  a 
contract  for  sale  and  the  conveyance,  streets  were  laid  out 
in  a  way  the  parties  did  not  anticipate  when  they  entered 
into  the  contract,  which  rendered  the  shape  of  the  lots  less 
desirable,  it  was  held  that  there  was  no  ground  for  the  ven- 
dee, either  to  refuse  a  specific  performance  of  the  agree- 
ment, or  to  base  a  claim  for  compensation,  if  there  was  no 
warranty  or  misrepresentation  on  the  part  of  the  vendor.' 

§  328.  Relevancy  of  proof  as  to  value. — Although  the 
mere  circumstance  that  the  sum  paid  is  greatly  less  than 
the  property  contracted  to  be  purchased  is  worth,  will  not 
itself  be  sufficient  to  set  aside  the  agreement,  yet  it  may  be 
evidence  of  fraud  and  imposition,  which,  coupled  with  other 
considerations,  frequently  occasions  the  interference  of  a 
court  of  equity.'  An  inquiry  into  the  value  may  be  im- 
portant in  determining  whether  fraud  or  mistake  has  act- 
ually intervened.      But  the  legal  character  of  the  transac- 

specific  performance  of  a  contract  for  the  sale  of  land  must  satisfy  the  court  that 
the  claim  is  fair  and  just,  the  contract  equal  in  all  its  parts,  and  founded  on  a 
sufficient  consideration.  If  he  fail  in  establishing  any  of  these  points,  he  will  be 
left  to  his  remedy  at  law.  Modisett  v.  Johnson,  2  Blackf.,  431  ;  Johnson  v. 
Dodge,  17  111.,  433. 

'  White  V.  Flora,  2  Overton,  426;  Baker  v.  Howell,  4  Johns  Ch.,  118;  New- 
man V.  Meek,  Freeman  (Miss.)  Ch.,  441  ;  Green  v.  Thompson,  2  Ired.  Eq.,  365  ; 
McCormick  v.  Malin,  5  Blackf.,  509 ;  Eyre  v.  Potter,  1 5  How.,  43 ;  Borell  v. 
Dann,  2  Hare,  450;  Falcke  v\  Gray,  4  Drew,  651  ;  Summers  v.  GrifTiihs,  35 
Beav.,  27. 

*  Chambers  v.  Livermore,  15  Mich.,  381.     '  Morgan  v.  Scott,  26  Pa.  St.,  51. 

*  White  V.  Flora,  supra. 


§  329-     FRAUD  OF  VENDOR  RELIEVED  AGAINST.       45 1 

tion  does  not  depend  upon  the  question  of  the  sufficiency 
of  the  price.' 

§  329.  Fi^aud  of  vendor  relieved  against. — Where  a  con- 
tract on  the  part  of  the  complainant  is  fraudulent,  and  the 
other  party  is  induced  to  enter  it  by  the  fraud,  or  where  a 
delinquency  on  the  part  of  the  complainant  makes  the  con- 
tract a  hardship  for  which  an  adequate  compensation  can- 
not be  devised,  the  court  will  rescind  the  contract  if  the 
parties  can  be  left  in  the  same  condition  they  w^ere  in  be- 
fore the  contract  was  made.  So,  if  the  vendor  seeks  by 
fraud  to  deprive  the  purchaser  of  the  benefit  of  the  con- 
tract, specific  performance  will  be  decreed  at  the  suit  of  the 
latter.  A.  gave  to  B.  the  following  instrument :  "  The 
trustees  of  the  town  of  C.  w^ill  please  convey  lot  number 
thirty-two  to  B.,  w^ho  has  purchased  it  of  me,  and  for  which 
I  have  received  value  in  full.  Nov.  2,  18 16."  This  order 
was  sold  to  D.,  and,  in  the  meantime,  A.  procured  a  con- 
veyance to  himself.  On  a  bill  to  compel  A.  to  convey  to 
D.,  it  was  held  that  A.  could  not  set  up  non-payment  of 
the  notes  given  to  him  by  B.  against  his  express  declara- 
tions in  the  order  to  the  prejudice  of  D."  A.  agreed  to 
give  B.  a  deed  of  land  owned  by  A.'s  wife,  with  full  cove- 
nants, fifty  dollars  to  be  paid  dowm  and  two  hundred 
and  fifty  dollars  secured  by  bond  and  mortgage.  The 
fifty  dollars  were  paid,  and  B.  took  possession  of  the  land 
and  made  improvements  thereon.  The  deed  was  never 
executed,  though  B.  was  ready  to  give  the  stipulated  secu- 
rity for  the  balance  of  the  purchase  money.  These  facts 
being  known  to  C.  and  D.,  they  combined  with  A.  to  de- 
fraud B.,  and,  in  pursuance  thereof,  A.  and  his  wife  exe- 
cuted a  deed  of  the  land  to  C.  in  trust  for  D.,  who  paid  the 
purchase  money.  C.  brought  ejectment  against  A.  B. 
filed  a  bill  against  A.  and  his  wife  and  C.  and  D.  for  spe- 
cific performance  of  the  agreement,  and  for  an  injunction 
against  the  action   at  law.     The  court  granted  the  relief 

'  Chambers  v.  Livermore,  supra.  ^  Fugate  v.  Hansford,  3  Litt.,  262. 


452       MISREPRESENTATION,   FRAUD,   OR  MISTAKE.     §§330,331. 

sought  against  C,  the  grantee,  with  notice,  but  refused  to 
enforce  the  agreement  against  A.  and  his  wife.' 

§  330.  False  recital  in  conveyance. — A  deed  will  not 
necessarily  be  rendered  invalid  by  an  untruthful  recital  of 
the  consideration,  though  it  may  in  certain  cases  have  that 
effect.''  If  the  transaction,  which  is  the  foundation  of  the 
deed  and  the  consideration,  are  fraudulently  stated,  the 
deed  will  not  be  binding  in  equity,  even  if  it  be  so  at  law.' 
In  cases  of  fiduciary  relations  subsisting  between  the  par- 
ties, the  deed  must  contain  a  fair  and  truthful  statement  of 
the  transaction.'  The  false  statement  of  the  consideration 
of  a  deed,  or  other  suspicious  circumstances,  may  transfer 
the  burthen  of  proof  to  the  party  seeking  to  uphold  it." 

§331.  Unlawful  agreements.  —  Gaming  contracts,  in 
which  are  included  time  contracts  in  stocks,  cannot  be  en- 

'  Annan  v.  Merritt,  13  Conn.,  478. 

^  Bowen  v.  Kirwan,  LI.  &  G.,  47  ;  Uppington  v.  Bullen,  2  Dr.  &  W.,  184; 
Gibson  v.  Russell,  2  Y.  &  C.  C.  C.,  104.  In  a  suit  by  an  incorporated  company 
for  the  specific  performance  of  the  contract  of  the  defendant  to  take  two  thou- 
sand ten-pound  shares  in  the  company,  and  pay  for  them  in  such  numbers  and 
at  such  times  as  should  be  required  for  the  purposes  of  the  company,  it  appeared 
that  the  defendant's  name  had  been  placed  on  the  register  of  shareholders,  and 
that  a  call  had  been  made  upon  him  which  he  refused  to  pay.  At  the  same 
time  the  contract  was  entered  into,  the  board  of  directors  had  agreed  with  the 
defendant  to  pay  him  four  thousand  pounds  in  consideration  of  services  rendered 
by  him  for  the  company.  This  sum  was  to  be  paid  twelve  months  after  the 
shares  had  been  paid  in  full.  Subsequently,  the  directors  called  on  the  defend- 
ant to  pay  up  one  thousand  of  his  shares,  w'hich  he  refused  to  do,  alleging  that 
the  two  agreements  constituted  in  reality  one  contract  for  the  issue  of  the  shares 
at  a  discount;  that  he  had  not  rendered  the  company  any  services;  and  that  the 
contract  was  made  divisible  in  order  to  evade  the  articles  of  association,  which 
prohibited  the  directors  from  issuing  shares  at  a  price  below  par  without  the 
consent  of  a  general  meeting,  and  that  no  such  consent  had  been  given  to  the 
contract  with  the  defendant.  It  was  held  that  as  the  defendant  had  united  with 
the  directors  to  defraud  the  company,  he  could  not  set  up  this  fraud  for  the  pur- 
pose of  invalidating  the  agreement  to  take  and  pay  for  the  shares ;  that  as  the 
parties  had  provided  for  a  piecemeal  fultilment  of  the  one  agreement,  the  court 
could  compel  the  performance  of  a  part;  and  that  in  the  absence  of  any  proof 
of  bad  faith,  the  resolution  of  the  directors  to  call  up  the  amount  of  the  shares 
was  conclusive  evidence  that  the  money  was  required  for  the  purposes  of  the 
company.  Specific  performance  of  the  contract  to  take  and  pay  for  the  shares 
was  accordingly  decreed.  Odessa  Tramways  Co.  v.  Mendel,  L.  R.  8,  Ch.  D. 
235- 

=*Watt  V.  Grove,  2  Sch.  &  Lef.,  501. 

*  Ahearne  v.  Hogan,  Dru.,  310;  Clifford  v.  Turrell,  i  Y.  &  C.  C.  C,  138 ;  Gib- 
son V.  Russell,  supra  ;  Upington  v.  Bullen,  supra. 

'  Griffiths  v.  Robbins,  3  Mad.,  105  ;  Watt  v.  Grove,  supra  ;  Harrison  v.  Guest, 
6  De  G.  M.  &  G.,  434 ;  8  House  of  Lds.,  481. 


§§  33^^  333-  COMPULSORY  CONTRACT.  453 

forced ;  nor  money  lost  in  gaming,  or  lent  with  knowledge 
that  it  was  to  be  used  for  that  purpose,  be  recovered  ; '  nor 
an  instrument  be  set  aside,  the  consideration  of  which  is 
an  illegal  wager/  But  it  has  been  held,  as  we  have  seen, 
that  a  suit  in  equity  may  be  maintained  to  have  a  gaming 
security  delivered  up  and  cancelled.' 

§  332.  Contracts  affected  with  tisury. — As  already  stated, 
a  court  of  equity  will  not  enforce  a  usurious  contract  in 
behalf  of  the  lender.'  And  if  the  borrower  seeks  relief  in 
equity  against  the  usurious  contract,  he  will  not  be  relieved 
except  upon  the  terms  of  paying  the  lender  what  is  law- 
fully due  him.'  But  the  borrower  may  maintain  a  suit  in 
equity  to  compel  the  giving  up  of  a  collateral  security  for 
a  usurious  debt,  although  he  might  defend  against  it  in  an 
action  at  law.° 

§  333.  Compulsory  contract. — A  compulsory  agreement 
of  a  person  cannot  be  enforced  against  him,  whether  he  is 
under  duress,  or  in  extreme  terror  from  threats  ;  it  being  a 
rule  in  equity,  that  the  court  will  protect  one  who  is  not  a 
free  agent,  and  who  is  incapable  of  protecting  himself. "^ 
Equity  regards  with  jealousy  a  contract  entered  into  by  a 
person  while  restrained  of  his  liberty,  and  if  there  be  reason 
to  suspect  oppression,  or  imposition,  the  contract  will  be 
set  aside.*     So,  a  contract  extorted  from  another  by  reason 

'  I  Fonbl.  Eq.,  Book  i,  Ch.  4,  Sec.  6;  Bosanquet  v.  Dashwood,  Sel.  Cas. 
Temp.,  41  ;  Rawclon  v.  Shadwell,  Ambler,  269 ;  Wilkinson  v.  L'Eaugier,  2  Y.  & 
C,  366;  Brua's  Appeal,  55  Pa.  St.,  294.  See,  however,  McKinney  v.  Pope,  3  B. 
Mon.,  93;  Bonner  v.  Montgomery,  9  lb.,  123  ;  McKimball  v.  Robinson,  i  M.  & 
W.,  434;  Machier  v.  Morse,  2  Gratt.,  257  ;  White  v.  Buss,  3  Cush.,  448. 

2  Thomas  v.  Cronie,  16  Ohio,  54.  ^  Ante,  %  217. 

*  Ante,  §  216.  And  see  i  Fonbl.  Eq.,  B.  i,  Ch.  i.  Sec.  3,  note  H  ;  Fanning  v. 
Dunham,  5  Johns  Ch.,  122. 

^Whitehead  v.  Peck,  i  Kelly,  140;  Ballinger  v.  Edwards,  4  Ired.  Eq.,  449; 
Rogers  v.  Rathbun,  i  Johns  Ch.,  367  ;  Fanning  v.  Dunham,  supra. 

®  Peters  v.  Mortimer,  4  Edw.  Ch.,  279. 

'  Evans  v.  Llewellin,  i  Cox,  340 ;  Atty.  Genl.  v.  Sothon,  2  Vern.,  497 ; 
Crowe  v.  Ballard,  i  Ves.,  215;  Hill  on  Trustees,  156;  Jeremy  on  Eq.  Juris., 
Book  3,  Pt.  2,  Chap.  3,  Sec.  i. 

**  Hinton  v.  Hinton,  2  Ves.  Sen.,  634  ;  Underbill  v.  Harwood,  10  lb.,  219  ;  Nichols 
v.  Nichols,  I  Atk.,  409;  Griffith  v.  Spratley,  i  Cox,  383;  Falkner  v.  O'Brien,  2 
B.  &  Beatt.,  214.  See  Williams  v.  Bayley,  L.  R.,  i  House  of  Lds.,  218  ;  French 
v.  Shoemaker,  14  Wall,  233. 


454  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  334 

of  his  extreme  necessity  and  distress,  without  direct  re- 
straint or  duress,  will  justify  its  rescission.'  Duress  subse- 
quent to  the  contract  will  not  of  course  be  a  ground  for 
rescission."  Where  a  father  was  induced  to  give  security 
for  his  son's  debt  by  an  implied  threat  that  otherwise  the 
son  would  be  prosecuted  for  felony,  it  was  held  that  the 
father  was  not  bound."  But  a  contract  entered  into  by  a 
person  in  prison  may  be  enforced.'  Although  a  court  of 
equity  will  not  usually  relieve  any  one  from  the  conse- 
quences of  a  voluntary  act  in  fraud  of  the  law,  yet  it  will 
not  permit  a  person  to  profit  by  a  written  instrument  which 
is  extorted  by  exciting  false  alarms  as  to  legal  liability  when 
there  is  such  a  relation  of  confidence  as  gives  one  a  special 
power  over  the  other." 

§  334.  Person  committing  fraud  deemed  a  trustee. — In 
cases  of  fraud  a  court  of  equity  will  sometimes  imply  a 
trust,  and  enforce  it."  Where  one  received  the  title  to  land 
as  security  for  money  advanced  by  him  to  the  vendor  for 
the  vendee,  promising  to  reconvey  the  same  to  the  vendee 
on  repayment  of  the  money  so  advanced  with  twenty  per 
cent,  interest,  but  fraudulently  sold  the  land  to  another, 
who  bought  with  notice,  repayment  having  been  tendered 
within  the  time  stipulated,  it  was  held  that  the  party  de- 
frauded was  entitled  to  a  decree  for  specific  performance, 
or  pecuniary  compensation  for  the  property,  and  that  the 
defendant  should  be  adjudged  a  trustee  of  the  plaintiff.' 
Where  a  husband  purchased  land,  giving  therefor  a  prom- 
issory note,  falsely  representing  that  the  maker  was  re- 
sponsible, and  caused  the  deed  to  be  made  out  to  his  wife, 
who  paid  nothing,  it  was  held  that  although  she  was  not  a 
party  to  the  fraud,  she  could  not  protect  herself  as  a  bo7ia 


'Pickett  V.  Loggon,  14  Ves.,  215;  Carpenter  v.  Elliot,  cited  2  Ves.,  493; 
Beasley  v.  Maggrath,  2  Sch.  &  Lef.,  31  ;  Ramsbottom  v,  Parker,  6  Mad.,  6  ; 
Wood  V.  Abrey,  3  lb.,  216. 

^  Fulton  V.  Loftis,  63  N.  C,  393.  ^  Williams  v.  Bayley,  supra. 

*  Brinkley  v.  Hann,  i  Dru.,  175.  ^Barnes  v.  Brown,  32  Mich.,  146. 

^  Wheeler  v.  Reynolds,  66  N.  Y.,  227.        '  Jackson  v.  Gray,  9  Ga.,  ^T. 


§  335-  FRAUD    OF    PERSON.  455 

fide  purchaser  for  value,  but  was  affected  by  all  the  equities 
which  the  vendor  was  entitled  to  enforce  against  her  hus- 
band.' If  an  heir  fraudulently  prevents  his  ancestor  from 
making  a  devise  which  he  contemplates,  a  court  of  equity 
will  hold  him  a  trustee  for  the  intended  devisee.  If  the 
owner  of  land,  even  by  fraudulent  silence,  encourages  an- 
other to  purchase  the  land  from  one  having  no  title,  equity 
will  compel  him  to  make  the  title  good.  Equity  holds,  in 
such  cases,  that  the  party  is  guilty  of  a  fraud  in  availing 
himself  of  a  legal  right  to  the  prejudice  of  another,  and 
will  not  permit  him  to  profit  by  his  fraud.' 

§  335-  Fi''ci'^d  of  person  assicining  to'  act  f 07'-  another. 
— A  court  of  equity  will  take  from  a  party  the  benefit 
he  may  have  derived  from  his  own  fraud,  imposition,  or 
undue  influence,  by  preventing  acts  intended  to  be  done 
for  the  benefit  of  a  third  person.'  A  person  who  assumes 
to  act  as  agent  in  redeeming  land  sold  for  taxes,  will  be 
deemed  to  have  acted  in  that  capacity,  and  cannot  take  ad- 
vantaofe  of  such  act  to  obtain  a  title  to  the  land  in  his 
own  name,  but  is  answerable,  to  those  in  whom  the  title 
rested,  in  the  character  first  assumed."  So,  where  L.,  by 
fraud  and  misrepresentation,  induced  F.  to  sell  him  certain 
land,  pretending  that  he  was  acting  for  C,  and  that  he  was 
purchasing  it  for  C.'s  benefit,  it  was  held  that  L.  could 
not  secure  the  advantage  of  a  purchase  he  could  not  have 
made  for  his  own  benefit  if  F.  had  known  that  such  was 
his  object'     F.,  a  very  old  man  and  a  bachelor,  intending 

1  Mendenhall  v.  Treadway,  44  Ind.,  131.  See  Dugan  v.  Vattier,  3  Blackf., 
245  ;  Gallion  v.  M'Caslin,  i  lb.,  91  ;  Aldridge  v.  Dana,  7  lb.,  249  ;  Aubuchon  v. 
Bender,  44  Mo.,  560. 

"  Anthony  v.  Leftwitch,  3  Rand.,  238. 

^  Story's  Eq.  Juris.,  Sec.  256.     See  Bellamy  v.  Sabine,  2  Phil.,  425. 

^  Shedda  v.  Sawyer,  4  McLean,  181. 

^  Johnson  v.  Cown,  22  Wis.,  329.  Where  there  are  strong  suspicions  that  a 
contract  for  the  conveyance  of  land  was  fraudulently  made  by  the  agent  ot  the 
defendant,  by  collusion  with  the  complainant,  and  it  is  proved  to  have  been 
made  in  the  absence  of  the  defendant,  equity  will  not  enforce  specific  perform- 
ance. Hunter  v.  Griffin,  19  III,  251.  A.  employs  B.  as  his  agent  to  purchase  a 
house  for  him.  B.  makes  the  purchase,  takes  the  deed  in  his  own  name,  and 
pays  his  own  money  for  it,  A.  cannot  compel  B.  to  convey.  Wallace  v.  Brown, 
2  Stockt.  Ch.,  308  ;  Story's  Eq.  Juris.,  Sec.  1200,  note  i. 


456  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  336. 

to  give  to  the  complainants,  who  were  his  nephews  and 
nieces,  ten  thousand  dollars  by  his  will,  consulted  with  V., 
a  nephew  in  whom  he  had  great  confidence,  on  the  subject 
of  the  proposed  bequest,  and  the  latter  told  him  that  he 
would  undertake  to  pay  the  money  to  the  complainants  if 
he  would  intrust  him  with  its  payment ;  and  that  if  he 
would  bequeath  to  him  twenty  thousand  dollars  for  his  own 
benefit,  and  ten  thousand  dollars  for  the  complainants,  or 
would  intrust  him  with  what  was  intended  for  the  com- 
plainants, or  would  include  the  gift  of  ten  thousand  dollars 
in  the  bequest  to  him,  he  would  collect  and  pay  it  to  the 
complainants.  F.  thereupon  made  his  will,  and  bequeathed 
to  V.  thirty  thousand  dollars,  without  expressing  any  trust 
or  making  any  bequest  to  the  complainants.  F.  afterward 
told  V.  that  though  he  had  by  the  will  given  him  thirty 
thousand  dollars,  he  intended  ten  thousand  dollars  of  it  to  go 
to  the  complainants,  and  that  he  would  not  revoke,  cancel,  or 
change  the  bequest,  if  V.  w^ould  pay  ten  thousand  dollars 
of  it  to  them,  which  V.  promised  to  do.  F.,  relying  on 
the  assurance  of  V.,  died  without  changing  the  bequest. 
It  was  held  that  the  complainants  were  entitled  to  specific 
performance  of  V.'s  promise.'  A.  contracted  land  to  C. 
without  authority  from  B.,  the  owner.  Afterward,  B. 
quit-claimed  the  premises  to  C,  and  delivered  the  deed  to 
A.  as  an  escrow,  for  him  to  deliver  to  C,  upon  the  per- 
formance of  certain  conditions.  A.,  confederating  with 
C.  to  defraud  B.,  delivered  the  deed  to  C.  without  the  con- 
ditions being  fulfilled.  Held,  that  C.  should  restore  the 
property,  accounting  for  the  rents  and  profits  ;  and  that  C. 
could  not  claim  the  land  under  the  deed  from  B.  by  com- 
plying with  the  original  contract  made  with  A.,  but  that 
having  repudiated  the  contract,  it  was  too  late  to  ask  for 
specific  performance.' 

§  336.   Pa7'ty  seeking  to  benefit  himself  by  /rated. — Al- 
though a  person  may  not  have  originally  been  concerned  in 

1  Williams  v.  Vreeland,  29  N.  J.  Eq.,  417.  '  Clement  v.  Evans,  15  111.,  92. 


§  2,2,7-  PERSON    INJURED    CAN    ALONE    COMPLAIN.  457 

a  fraudulent  transaction,  yet  if  he  seek  to  take  advantage 
of  it  by  fraud,  he  will  not  be  permitted  to  avail  himself  of 
it*  A.  held  a  title  bond  to  land.  After  paying  the  pur- 
chase money  he  conveyed  the  land  to  B.,  who  did  not  have 
the  deed  recorded.  B.  sold  the  land  to  C,  and  returned 
the  deed  to  A.,  with  directions  to  cancel  it  and  convey  di- 
rectly to  C.  A  conveyance  was  accordingly  executed  to 
C.  with  full  covenants,  and  for  a  sufficient  consideration. 
C.  having  filed  a  bill  for  specific  performance  of  the  con- 
tract of  sale,  B.  asserting  no  claim,  it  was  held  that  as  the 
parties  had  knowledge  of  the  deed  to  the  plaintiff,  they 
could  not  attack  his  title,  on  the  ground  that  A.,  by  his 
deed  to  B.,  had  divested  himself  of  title,  and  that  the  return 
of  the  instrument  did  not  reinvest  the  title  in  A."  Where 
a  paper  was  deposited  with  a  third  party  to  be  held  by  him 
as  an  escrow,  not  to  be  delivered  as  a  deed,  but  upon  the 
order  of  the  vendor,  and  the  purchaser  fraudulently  obtained 
it,  it  was  held  that  the  purchaser  could  not  maintain  a 
bill  thereon  for  specific  performance  of  the  alleged  con- 
tract.' 

§  337.  Pe7'soii  injitred  can  alone  complain  offra2f,d. — A 
contract  of  conveyance  will  not,  as  a  rule,  be  set  aside  for 
fraud,  except  at  the  option  of  the  party  defrauded.*  Al- 
though there  may  be  cases  in  which  a  purchaser  who  has 
completed  his  contract  may  impeach  a  title  founded  upon 
fraud  committed  upon  his  vendor,  yet  the  right  to  complain 
of  a  fraud  is  not  a  marketable  commodity ;  and  if  it  ap- 
pears that  an  agreement  for  purchase  has  been  entered  into 
for  the  purpose  of  acquiring  such  a  right,  the  vendee  can- 
not call  upon  a  court  of  equity  to  enforce  specific  perform- 


'  Brown  v.  Bonner,  8  Leigh,  i.  -  Williams  v.  McGuire,  60  Mo.,  254. 

^  Booth  V.  Hartley,  3  W.  Va.,  478.  Where  a  government  officer  purchases  a 
quantity  of  sugar  under  an  agreement  which  he  is  not  authorized  to  make,  and 
the  sugar  is  taken  by  the  government,  a  court  of  equity  has  jurisdiction  to  en- 
force the  agreement  against  him  personally  and  fix  the  compensation  to  be  paid 
for  the  same.     Yulee  v.  Canova,  1 1  Fla.,  9. 

"  Ayers  v.  Hewitt,  19  Me.,  281  ;  Jones  v.  Hill,  9  Bush,  692  ;  Story's  Eq.  Juris., 
Sec.  1040.     See  ante,  §  318. 


458      MISREPRESENTATION,   FRAUD,   OR  MISTAKE.     §§  338,  339. 

ance  of  the  agreement.  Such  a  transaction  savors  too 
much  of  maintenance  for  the  court  to  lend  it  its  sanction.' 

§338.  Whe7i  judgment  relieved  against  for  f 7' aud. — 
Although  there  may  be  such  fraud  upon  the  court,  and 
upon  the  opposite  party,  in  judicial  proceedings,  as  will 
vitiate  a  judgment  obtained  thereby,  yet  fraud  in  such  a 
case  is  made  up  of  the  same  constituents  as  in  any  other 
case,  and  the  same  state  of  facts  must  appear.  There  must 
be  fraudulent  allegations  and  representations  designed  and 
intended  to  mislead,  with  knowledge  of  their  falsity,  and 
damage  resulting."  A  judgment  or  award  obtained  by  false 
testimony,  fraudulently  given  by  the  party  benefited  there- 
by, is  voidable ;  and  a  gross  exaggeration  of  value  know- 
ingly and  wilfully  made,  especially  in  the  absence  of  the 
adverse  party,  would  be  sufficient  evidence  of  fraud  to  in- 
validate a  judgment  or  assessment  of  damages.'  The  fraud 
for  which  a  court  of  equity  will  set  aside  a  judgment  or  de- 
cree, must  be  actual,  and  not  merely  constructive.  It  must 
have  occurred  in  the  procuring  of  a  judgment  or  decree,  be 
something  not  known  to  the  other  party  at  the  time,  and 
for  not  knowing  which  he  is  not  chargeable  with  negligence. 
Relief  can  only  be  granted  upon  some  new  matter  of  equity 
not  arising  in  the  former  case.' 

§  339-  Statutes  as  to  fratid  against  creditors. — An  agree- 
ment entered  into  by  a  debtor  to  delay,  deceive,  or  deprive 
creditors  of  what  is  justly  due  them,  is  fraudulent  and  void 
at  common  law ; '  and  statutes  in  affirmance  of  the  common 
law  in  this  respect,  were  passed  at  an  early  period,  which, 

1  De  Hoghton  v.  Money,  L.  R.  2,  Ch.  164. 

"^  Hunt  V.  Hunt,  72  N.  Y„  217;  State  of  Mich.  v.  Phoenix  Bank,  33  lb.,  9. 

^  Jordan  v.  Volkenning,  72  N.  Y.,  300. 

*  Foster  v.  Wood,  6  Johns  Ch.,  87.  In  this  case,  it  was  stated  by  Chancellor 
Kent  that  chancery  would  not  relieve  against  a  judgment  at  law  on  the  ground 
of  its  being  contrary  to  equity,  unless  the  defendant  in  the  judgment  was  igno- 
rant of  the  fact  in  question  pending  the  suit,  or  it  could  not  have  been  received  as 
a  defence,  or  unless  he  was  prevented  from  availing  himself  of  the  defence  by 
fraud  or  accident  unmixed  with  negligence  or  fault  on  his  part. 

*  Copis  v.  Middleton,  2  Mad.,  428 ;  Cadogan  v.  Kennett,  Cowper,  432  ;  Bar- 
ton v,  Vanheythuysen,  II  Hare,  132;  Pope  v.  Wilson,  7  Ala.,  690;  Tripp  v. 
Childs,  14  Barb.,  85;  Clark  v.  Douglass,  62  Pa.  St.,  408. 


§  340-      CONTRACT  IN  FRAUD  OF  CREDITORS. 

in  the  suppression  of  fraud,  have  always  received  a  liberal 
interpretation  both  at  law  and  in  equity.'  The  most  noted 
of  these  statutes,  and  the  one  which  has  been  substantially 
re-enacted  in  most  of  the  States,  is  that  of  13  Elizabeth, 
Ch.  5,  against  fraudulent  conveyances  of  land  to  defeat  or 
delay  creditors.  The  rules  of  construction  of  these  statutes 
are  the  same  at  law  and  in  equity,  and  the  jurisdiction  con- 
current ;  though  there  are  cases  of  fraud  not  reached  by 
statutory  provisions,  and  where  the  only  remedy  is  in  equity.* 
A  conveyance  by  one  indebted  at  the  time,  by  which  the 
grantor  secures  some  benefit  to  himself  at  the  expense  of 
creditors,  or  by  which  creditors  are  prevented  from  com- 
pelling an  immediate  appropriation  of  the  debtor's  property 
to  the  payment  of  his  debts,  is  fraudulent  and  void  ;  as 
where  the  grant  is  of  all  the  property  of  the  debtor  in  trust 
for  himself,  and  for  his  wife  during  his  life.' 

§  340.  Contract  in  fraud  of  creditors. — The  question  of 
fraud  depends  upon  the  illegal  intent.*  Equity  will  not  en- 
force a  contract  entered  into  by  the  plaintiff  for  the  purpose 
of  defrauding  a  creditor.'  If  the  parties  to  an  agreement 
for  the  sale  of  real  estate,  after  the  payment  of  the  pur- 
chase money,  but  before  the  delivery  of  the  deed,  make  an 
arrangement  to  defraud  the  creditors  of  the  vendee,  a  court 
of  equity  upon  a  suit  by  a  creditor,  will  deem  the  equitable 
title  vested  in  the  vendee,  and  the  statute  of  frauds  will  not 
be  a  bar  to  the  setting  up  of  such  title.'  Where  distribu- 
tees agreed  that  no  administration  should  be  taken,  and  that 
one  of  them  should  hold  and  manage  the  property  for  the 
joint  benefit  of  all,  he  being  in  possession  and  the  apparent 


>  Story's  Eq.  Juris.,  Sec.  352.  These  statutes  were  those  of  50  Edvv.  III.,  Ch. 
6;  3  Henry  VII.,  Ch.  4;  13  Eliz.,  Ch.  5  ;  and  27  Eliz.,  Ch.  4. 

"  See  Weed  v.  Pierce,  9  Cowen,  722  ;  Bosford  v.  Beers,  11  Conn.,  370;  Story's 
Eq.  Juris.,  Sec.  352. 

^  Young  V.  Heermans,  66  N.  Y.,  382,  and  cases  cited. 

*  Bird  V.  Aitken,  i  Rice  Ch.,  73 ;  Peters  v.  Smith,  4  Rich.  Eq.,  197  ;  Williams 
V.  Jones,  2  Ala.,  314;  Bullock  v.  Irving,  4  Munf.,  450;  Clemens  v.  Davis,  7  Pa. 
St.,  263  ;  Hickman  v.  Ouinn,  6  Yerg.,  36  ;  Thornton  v.  Davenport,  i  Scam.,  296. 

*  St.  John  v.  Benedict,  6  Johns  Ch.,  11 1.        *  Forsyth  v.  Clark,  3  Wend.,  637 


460  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  34I. 

owner  of  it  at  the  time  of  the  death  of  the  intestate,  and 
the  intestate  much  indebted  at  the  time  of  his  decease,  it 
was  held  that  such  agreement  could  not  be  enforced  in 
equity.*  A.'s  house  having  been  levied  on  and  advertised 
for  sale,  on  an  execution  against  A.  and  B.,  C.  bid  off  the 
premises  at  A.'s  request,  A.  paying  the  money,  and  the 
sheriff  making  the  deed  to  C,  which  was  done  to  protect 
the  premises  from  the  creditors  of  A.,  on  a  bill  filed  by  A. 
against  C,  praying  for  a  conveyance  to  him,  the  court  de- 
nied relief.'  A  banker,  who  held  bills  and  acceptances  as  a 
security  for  advances  made  to  a  customer,  received  from  the 
brother  of  the  customer  a  guaranty  that  the  loss  of  the  bank 
should  not  exceed  two  thousand  pounds.  This  arrangement 
was  entered  into  after  the  customer  had  commenced  pro- 
ceedings for  winding  up  his  affairs,  and  it  was  without  the 
knowledge  of  his  other  creditors,  with  a  view  to  prevent  the 
bank  from  opposing  a  composition.  In  a  suit  brought  by 
the  banker  for  specific  performance  of  the  agreement,  it  was 
held  that  as  it  was  calculated  to  give  one  creditor  a  secret 
advantage  over  the  others,  it  could  not  be  upheld  ;  and  the 
bill  was  dismissed  with  costs.' 

§  341.  When  conveyance  deemed  void  as  against  cred- 
itors.— A  deed  is  not  necessarily  fraudulent  even  against  ex- 
isting creditors,  merely  because  it  is  voluntary.  The  want 
of  consideration  is  only  a  circumstance  from  which,  with 
other  circumstances,  fraudulent  intent  may  be  inferred.    Still 

'  Allen  V.  Simons,  i  Curtis,  122.  In  this  case,  Curtis,  J.,  said:  "Distributees 
have  no  right  whatever  to  intermeddle  with  the  personal  propert}^  of  the  deceased 
for  any  other  purpose  than  to  do  such  acts  as  may  be  necessary  to  preserve  it 
until  an  administrator  can  be  appointed.  Any  other  acts  of  control,  by  any  per- 
son, constitute  him  an  executor  de  son  tort,  and  subject  him  as  a  penalty  to  the 
payment  of  the  debts  of  the  deceased.  When,  therefore,  this  bill  shows  that  the 
children  of  William  Simons,  senior,  instead  of  subjecting  this  property  to  the 
payment  of  his  just  debts  in  a  due  course  of  administration,  made  an  agreement 
that  no  administration  should  be  taken,  that  they  would  wholly  disregard  the 
rights  of  creditors,  and  treat  the  property  as  their  own,  it  shows  an  agreement 
which  a  court  of  equity  cannot  enforce.  It  is  not  based  on  any  equitable  right  of 
the  parties.  It  is  a  violation  of  the  common  law.  It  tends  to  defraud  creditors. 
It  is  plainly  forbidden  by  public  policy;  and  is  inconsistent  with  that  system  of 
statute  law  providing  for  the  just  and  orderly  settlement  of  intestate  estates." 
Forsyth  v.  Clark,  3  Wend.,  637.     *  McKewan  v.  Sanderson,  L.  R,  20,  Eq.  65. 


§  342. 


HOW    SUBSEQUENT    PURCHASER    AFFECTED.  461 


less  is  it  per  se  fraudulent  and  void  as  against  subsequent 
purchasers.  To  impeach  the  conveyance,  there  must  be  cir- 
cumstances showing  actual  fraud,  and  that  it  was  contem- 
plated. If  a  voluntary  conveyance  is  made  immediately 
before  engaging  in  some  hazardous  business,  or  obligations 
are  incurred  so  soon  after  the  conveyance  as  to  warrant  a 
presumption  that  actual  fraud  was  intended,  or  other  cir- 
cumstances lead  to  the  same  inference,  a  deed  will  be  ad- 
judged fraudulent  and  void  as  well  against  the  subsequent 
as  existing  creditors.' 

§  342.   How  subseqzcent  purchaser  affected  by  vohtntary 
conveyance. — In  England,  under  the  statute  27  Eliz.,  Ch.  4," 

>  Story's  Eq.  Juris.,  Sec.  361  ;  Young  v.  Heermans,  66  N.  Y.,  374,  per  Allen, 
J.  See  Mackay  v.  Douglass,  L.  R.  14,  Eq.  106;  Saxton  v.  Wheaton,  8  Wheat., 
229;  Ridgway  v.  Underwood,  4  Wash.  C.  C,  129;  McPherson  v.  Kingsbaker, 
22  Kansas,  646.  "  Upon  a  full  examination  of  all  the  cases,  the  legal  principle 
appears  to  be  established,  that  when  a  voluntary  conveyance  is  made  and  re- 
ceived with  an  actual  intent  to  defraud  the  then  existing  creditors  of  the  grantor, 
it  is  not  a  bona  fide  conveyance  which  can  protect  the  grantee  against  the  claims 
of  subsequent  creditors."  Walworth,  Ch.,  in  King  v.  Wilcox,  11  Paige  Ch.,  5S9. 
"  It  is  well  settled,  that  if  a  debtor  makes  a  conveyance,  with  the  purpose  of  de- 
frauding either  existing,  or  future  creditors,  it  may  be  impeached  by  either  class 
of  creditors."  Day  v.  Cooley,  118  Mass.,  524,  per  Morton,  J.  And  see  Dewey 
V.  Moyer,  72  N.  Y.,  70.  A  suit  may  be  maintained  by  a  judgment  creditor  to 
set  aside  a  deed  of  real  estate  made  by  the  debtor  with  intent  to  defraud  the 
plaintiff,  although  the  debt  was  created  after  the  execution  of  the  deed,  the  de- 
{"endant  remaining  in  possession  of  the  land,  and  in  seeming  ownership,  and  keep- 
ing up  his  credit  thereby.  In  such  case,  a  transfer  of  real  estate  may  be  made 
w'ith  an  intent  to  defraud  one  who  has  subsequently  become  a  creditor;  and  the 
fact  of  fraudulent  intent  appearing,  the  deed  will  be  declared  void  as  against  the 
subsequent  creditor.  Shand  v.  Hanley,  71  N.  Y.,  319.  See  Savage  v.  Murphy, 
34  N.  Y.,  508 ;  Case  v.  Phelps,  39  lb.,  164.  A  vendee,  or  his  creditors,  seeking 
to  apply  the  property  to  the  payment  of  their  debts,  cannot  enforce  specific  per- 
formance of  a  contract  for  the  sale  of  land  which  has  been  rescinded  by  the  par- 
ties either  in  writing  or  by  parol,  even  if  the  contract  of  rescission  is  not  recorded. 
If  the  motive  for  the  rescission  of  the  contract  was  to  benefit  the  vendee,  or  in- 
jure his  creditors,  the  creditors  would  not  be  affected  by  it.  Otherwise,  if  it  was 
to  save  the  vendor.  Fleming  v.  Martin,  2  Head  Tenn.,  43.  It  was  early  held  in 
New  York,  that  a  voluntary  conveyance  by  one  indebted  at  the  time,  was  fraudu- 
lent toward  his  creditors  as  matter  of  law ;  and  no  evidence  was  admitted  to  re- 
but the  presumption  of  fraud.  Reade  v.  Livingston,  3  Johns  Ch.,  481.  A  less 
strmgent  rule  was  afterw^ard  adopted,  that  while  a  conveyance  by  a  person  in- 
debted, W3is  prima  facie  fraudulent,  the  presumption  might  be  rebutted.  Seward 
V.  Jackson,  8  Cowen,  406.  The  presumption  must,  however,  be  overcome  by  cir- 
cumstances showing,  on  their  face,  that  there  could  have  been  no  fraudulent  in- 
tent, such  as  that  the  gift  is  a  reasonable  provision,  and  that  the  debtor  still  has 
sufficient  means  to  pay  his  debts.  Carpenter  v.  Roe,  10  N.  Y.,  230 ;  Babcock  v. 
Eckler,  24  lb.,  623  ;  Dygert  v.  Remerschnider,  32  lb.,  648;  Curtis  v.  Fox,  47 
lb.,  300 ;  Cole  v.  Tyler,  65  lb.,  73. 

2  Made  perpetual  by  39  Eliz.,  Ch.  18,  Sec.  31. 


462  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  343. 

the  object  of  which  was  to  protect  subsequent  purchasers 
from  the  grantor  against  volunteers  under  prior  convey- 
ances, a  voluntary  conveyance  is  v^oid,  as  to  a  subsequent 
purchaser,  notwithstanding  the  purchaser  had  notice  of  the 
voluntary  conveyance,  and  it  was  bona  fide  and  for  a  good 
consideration  ;  the  statute,  in  such  case,  inferring  fraud,  and 
not  suffering  the  presumption  to  be  gainsaid.'  In  the  United 
States  the  construction  of  the  statute  is  different  ;  the  courts 
holding  that  a  subsequent  sale,  without  notice,  by  a  person 
who  has  made  a  voluntary  settlement,  is  presumptive  evi- 
dence of  fraud,  and  throv/s  upon  the  person  claiming, 
under  such  voluntary  settlement,  the  burden  of  proving 
that  it  was  bona  fide ;  and  that  a  voluntary  conveyance 
without  fraud,  is  valid  as  against  a  subsequent  purchaser 
for  a  valuable  consideration  who  has  notice  of  such  volun- 
tary conveyance.' 

§  343.  Fraudulent  inte7fierence  with  pitblic  sale. — When 
the  sale  is  at  auction,  the  employment  of  an  under-bidder  or 
puffer,  will  sometimes  prevent  the  enforcement  of  the  con- 
tract on  the  ground  of  fraud.  If  it  be  secretly  arranged 
that  a  deceptive  competition  shall  be  got  up,  by  the  bidding 
of  one  or  more  persons  employed  for  that  purpose,  by 
which  bona  fide  bidders  are  misled,  the  sale  will  be  held 
void  as  unconscientious  and  against  public  policy.'  At  law, 

>  Doe  V.  Manning,  9  East,  59  ;  Pulvertoft  v.  Pulvertoft,  18  Ves.,  84  ;  Buckle  v. 
Mitchell,  lb.,  100  ;  Kelson  v.  Kelson,  10  Hare,  385  ;  Baking  v.  Whimper,  26 
Beav.,  568  ;  Clarke  v.  Wright,  6  H.  &  N.,  849;  Cotterell  v.  Homer,  13  Sim.,  506. 

"^  Starry  v.  Arden,  i  Johns  Ch.,  261  ;  S.  C,  12  Johns,  536;  Jackson  v.  Town, 
4  Cowen,  603  ;  Beal  v.  Warren,  2  Gray,  446  ;  Cathcart  v.  Robinson,  5  Peters, 
280  ;  Lancaster  v.  Dolan,  i  Rawie,  31  ;  Lyne  v.  Bank  of  Kentucky,  5  J.  J.  Marsh, 
545;  Corprew  v.  Arthur,  15  Ala.,  525;  Brown  v.  Bucks,  22  Ga.,  574;  Gardner 
V.  Booth,  31  lb.,  136;  Salmon  v.  Bennett,  i  Conn.,  525;  Enders  v.  Williams,  i 
Mete,  Ky.,  346;  Mayor  &  City  Council  of  Bait.  v.  Williams,  6  Md.,  235  ;  Shaw 
V.  Levy,  17  Serg.  &  R.,  99;  Aiken  v.  Bruen,  21  Ind.,  137  ;  Coppage  v.  Barnett, 
34  Miss.,  621  ;  Footman  v.  Pendergrass,  3  Rich.  Eq.,  33  ;  Wickes  v.  Clarke,  8 
Paige  Ch.,  165.  To  constitute  the  defence  of  a  bona  fide  purchase  without  notice, 
the  purchaser  must  have  paid  in  full  before  notice  of  the  fraud  of  the  vendor. 
Florence  Sewing  Machine  Co.  v.  Zeigler,  58  Ala.,  221.  "We  do  not  sanction 
the  extreme  doctrine  that  a  purchaser,  no  matter  how  innocent  he  may  be,  ac- 
quires no  rights  against  a  latent  equity  until  he  pays  in  full  and  receives  a  con- 
veyance. We  hold  that  he  acquires  an  equity  pro  tanto  to  the  extent  he  pays 
before  notice."     lb.,  per  Stone,  J. 

»  I  Fonbl.  Eq.,  B.  i,  Ch.  4,  Sec.  4,  note  X;  Veazie  v.  Williams,  8  How.,  134; 


§  343-  FRAUDULENT  INTERFERENCE  WITH  PUBLIC  SALE.   463 

all  secret  dealing  on  the  part  of  the  seller  with  a  view  to 
enhance  the  price  of  property  put  up  for  sale,  is  deemed 
fraudulent/  But  in  equity,  subject  to  an  exception  presently 
to  be  mentioned,  the  vendor,  without  announcing  his  in- 
tention, may  fix  upon  a  price  w4iich  he  is  willing  to  take 
for  the  property,  and  employ  a  person  to  bid  for  him  up  to 
that  price  ; '  though  if  he  employ  more  than  one  person  to 
bid,  or  if  his  object  in  employing  a  bidder  is  to  enhance  the 
price,  the  sale  will  be  deemed  fraudulent  in  equity,  as  well 
as  at  law.'  Ordinarily,  however,  the  keeping  back  by  the 
vendor  of  anything  in  relation  to  the  sale,  even  though  it 
be  the  employment  of  a  single  bidder  to  prevent  a  sacrifice 
of  the  property,  has  the  appearance  of  unfairness  toward 
competitors,  and  it  is  more  proper  for  him  to  announce, 
previous  to  the  sale,  that  unless  the  bidding  reaches  a 
certain  limit,  the  property  will  be  withdrawn."     If  it  be  an- 

Jones  V.  Caswell,  3  Johns  Cas.,  29  ;  Hamilton  v.  Hamilton,  2  Rich.  Eq.,  355  ; 
Brisbane  v.  Adams,  3  N.  Y.,  130;  Woods  v.  Hall,  I  Dev.  Eq.,  411  ;  Pennock's 
Appeal,  14  Pa.  St.,  449 ;  Staines  v.  Shore,  16  lb.,  200 ;  Slater  v.  Maxwell,  6  Wall, 
268. 

'  Thornett  v.  Haines,  15  M.  &  W.,  372  ;  Crowder  v.  Austin,  3  Bing.,  368. 

-  Flint  V.  Woodin,  9  Hare,  618.     But  see  Woods  v.  Hall,  i  Dev.  Eq.,  415. 

"  Connolly  v.  Parsons,  3  Ves.,  625,  n. ;  Meadows  v.  Tanner,  5  Mad.,  34 ;  Thor- 
nett V.  Haines,  supra  ;  Bramley  v.  Alt,  3  Ves.,  620 ;  Wolfe  v.  Luyster,  i  Hall, 
146. 

^  In  a  sale  at  auction  the  vendor  may  stipulate  for  the  power  of  buying  the 
property  if  it  is  going  at  a  sum  below  what  he  considers  a  fair  price.  But,  in 
the  absence  of  such  stipulation,  courts  of  law  hold  that  it  is  a  fraud  in  the  vendor 
to  prevent  the  property  from  going  to  the  person  who  offers  the  highest  price. 
It  has  been  claimed  that  a  difterent  rule  prevails  in  equity,  and  that,  without  any 
express  stipulation,  a  vendor  may  always  fix  a  reserved  price,  and  authorize  a 
person  to  bid  for  him  so  as  to  prevent  the  property  from  going  under  that  price. 
Sir  William  Grant,  in  Smith  v.  Clarke,  12  Ves.,  477,  not  only  recognized,  but 
apparently  approved,  of  such  a  rule.  He  seemed  to  think  it  fair  and  just  that 
persons  putting  up  property  for  sale  at  auction,  should  be  at  liberty  to  employ  a 
person  to  bid  for  them  a  stipulated  price  to  prevent  its  being  sold  at  an  under- 
value. The  practice  of  courts  of  equity,  in  modern  times,  is  to  require  an  ex- 
press stipulation  for  the  right  not  to  sell  under  a  fixed  price,  and  so,  by  implica- 
tion, to  employ  a  person  to  bid  up  to  that  price.  See  Mortimer  v.  Bell,  L,  R.  i, 
Ch.  12,  13;  Woodward  V.  Miller,  2  Coll.,  279.  A.  mortgaged  certain  property 
to  B.,  which  was  levied  on  by  C.  under  an  execution  in  his  favor.  A.  agreed  by 
parol  with  C.  that  C.  should  bid  in  the  property  at  the  amount  of  the  execution, 
and  give  A.  time  to  redeem  it  for  the  benefit  of  B.  On  a  bill  in  equity  to  enforce 
this  agreement,  it  was  held  that  it  was  not  within  the  statute  of  frauds,  but  that 
the  sale  could  not  be  ratified,  as  other  persons  who  were  present  at  the  sale 
were  kept  from  bidding  by  their  knowledge  of  this  agreement.  Rose  v.  Bates, 
12  Mo.,  ^o. 


464  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  343. 

nounced  that  the  sale  will  be  without  reserve,  any  interfer- 
ence by  the  vendor  affecting  the  right  of  the  highest  bidder 
to  have  the  property  knocked  down  to  him,  will  amount 
to  fraud,  and  be  a  defence  to  a  suit  for  specific  perform- 
ance.' Where  the  assignees  of  an  insolvent  put  up  for 
sale  at  auction,  without  reserve,  his  life  interest  in  certain 
property  under  a  secret  arrangement  with  a  person  whose 
wife  was  interested  in  remainder,  that  he  should  bid  thirty- 
five  thousand  pounds  and  take  the  property  unless  a  higher 
sum  should  be  bid,  it  was  held  that  it  tainted  the  sale  to 
the  defendant,  though  he  bid  off  the  property  for  fifty 
thousand  pounds.'  At  an  auction  sale  the  conditions  stated 
that  property  was  to  be  struck  off  to  the  highest  bidder, 
without  saying  anything  as  to  bidding  on  behalf  of  the 
vendor.  An  agent  of  the  vendor  bid  twenty-five  hundre4 
pounds.  The  auctioneer  then  bid  twenty-six  hundred 
pounds  ;  and  the  agent  and  the  auctioneer  continued  bid- 
ding against  each  other,  until  the  biddings  reached  thirty- 
six  hundred  pounds.  The  defendant  then  bid  thirty-six 
hundred  and  fifty  pounds,  and  the  property  was  knocked 
down  to  him.  It  was  held,  reversing  the  decision  of  the 
court  below,  that  the  vendor  could  not  enforce  the  con- 
tract' If  a  person  prevents  another  from  bidding,  in 
order  to  obtain  the  property  at  an  under-value,  it  is  fraud- 
ulent as  against  the  seller.'  At  an  auction  sale  a  bidder 
entered  into  an  agreement  with  a  by-stander  that,  if  he 
would  not  bid  against  him,  he  would  divide  the  land  with 
him,  and  it  was  held  a  fraud  on  the  vendor,  and  that  equity 
would  not  enforce  the  contract  against  him.'     But  it  is 

'  Robinson  v.  Wall,  2  Phil.,  375;  Thornett  v.  Haines,  supra;  Meadows  v. 
Tanner,  5  Mad.,  34.. 

'  Robinson  v.  Wall,  supra.  Where  a  person,  employed  by  the  owner  of  prop- 
erty sold  at  auction,  as  a  puffer,  runs  up  the  price,  and  the  property  is  knocked 
down  to  him,  he  will  be  entitled  to  hold  it  against  his  employer,  who,  having 
been  a  party  to  the  fraudulent  agreement,  cannot  avoid  it.  Troughton  v. 
Johnston,  2  Hayw.,  328.  But  a  purchaser  at  such  a  sale  will  be  entitled  to  have 
the  contract  set  aside,  on  a  bill  filed  for  that  purpose.  Morehead  v.  Hunt,  i  Dev. 
Eq.,  35.     See  Moncrief  v.  Goldsborough,  4  Har.  &  McHen.,  280. 

'  Mortimer  v.  Bell,  L.  R.  i,  Ch.  10.        "  Cocks  v.  Izard,  7  Wall,  559. 

*  Whitaker  v.  Bond,  63  N.  C,  290. 


§  344-       COMBINATION    OF    BUYERS    AT    AUCTION    SALE.  465 

doubtful  whether  a  mere  agreement  between  two  persons 
not  to  bid  against  each  other,  and  that  one  shall  retire,  will 
avoid  the  sale/ 

§  344.  Combination  of  b2tyers  at  aiution  sale. — Sales  for 
taxes  are  not  valid,  unless  conducted  strictly  according  to 
law,  and  without  anything  being  done  to  prevent  free  com- 
petition.' A  partnership,  or  combination  of  individuals, 
formed  for  the  express  purpose  of  buying  land  at  a  sale  for 
taxes,  is  a  fraud  on  the  owner  of  the  property,  and  a  con- 
veyance thus  obtained  will  be  set  aside.'  Under  certain 
circumstances,  persons  may  lawfully  and  properly  unite  in 
their  biddings.  As,  where  the  whole  property  for  any  rea- 
son does  not  suit  the  individuals  of  the  association,  as  cost- 
ing more  than  one  would  wish  to  purchase  ;  or  where  it 
consists  of  parts,  some  suitable  for  one  and  some  for  others 
of  the  association  ;  or  where  the  purchase  might  involve  a 
risk  which  they,  as  individuals,  are  not  willing  to  encounter 
— as  a  disputed  title,  or  the  like,  or  the  case  of  a  loss  upon 
a  resale,  where  the  profits  may  be  great,  and  so  may  the 
loss  ;  or  if  the  association  acts  from  motives  of  humanity 
and  benevolence  toward  some  individual,  whom  they  intend 
to  benefit,  and,  by  a  joint  bid,  equalize  the  burden.'  On 
the  same  principle  as  an  agreement  not  to  bid  at  auction, 
an  agreement,  for  a  certain  sum,  not  to  compete  with  an- 
other for  carrying  the  United  States  mail,  is  unlawful.' 
Lien  creditors,  as  well  as  others,  may  purchase  jointly  at  a 
sheriff's  sale,  if  all  be  open  and  fair.  But  a  combination, 
not  for  the  convenience  of  the  parties  in  enabling  them  to 
cut  up  the  property  if  it  should  be  too  much  for  one  of 
them,  or  in  putting  their  means  together  if  the  price  should 

'Gallon  V.  Emuss,  i  Coll.,  243;  Matter  of  Carew's  estate,  26  Beav.,  187; 
Snell  V.  Jones,  6  Serg-.  &  Rawle,  122;  Phippen  v.  Stickney,  3  Mete,  384;  Kerr 
on  Fraud  and  Mistake.  But  see  Story's  Eq.  Juris.,  Sec.  293  ;  Jones  v.  Caswell, 
3  Johns,  Cas.  29;  Doolin  v.  Ward,  6  Johns,  194;  Wilbur  v.  Howe,  8  lb.,  444  ; 
Hawley  v.  Cramer,  4  Cowen,  717  ;  Thompson  v.  Davis,  13  Johns,  112. 

^  Slater  v.  Maxwell,  6  Wall,  268,  s  Dudley  v.  Little,  2  Ohio,  504. 

■*  Smith  V.  Greenlee,  2  Dev.,  126;  Goode  v.  Hawkin,  2  Dev.  Eq.,  393  ;  Sutger 
V.  Skiles,  3  Gilman,  529;  Kearney  v.  Taylor,  15  How.,  494. 

'  Gulick  V.  Bailey,  5  Halst.,  87. 
30 


466  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  345. 

be  too  large,  but  to  get  the  property  at  an  under-value  by- 
hindering  it  from  having  a  fair  chance  in  the  market,  would 
be  fraudulent.  It  is  the  end  to  be  accomplished  which 
makes  such  a  combination  lawful  or  otherwise.  If  it  be 
to  depress  the  price  of  the  property  by  artifice,  the  purchase 
will  be  void.  On  the  other  hand,  if  it  be  to  obtain  the 
means  of  payment  by  contribution,  or  to  divide  the  prop- 
erty for  the  accommodation  of  the  purchasers,  it  will  be 
valid.' 

§  345.  Enjoining  wrongful  action  at  law. — When  a 
party,  by  fraud  or  mistake,  has  an  advantage  in  proceeding 
at  law,  and  which  must  necessarily  make  the  court  an  in- 
strument of  injustice,  a  court  of  equity,  to  prevent  a  mani- 
fest wrong,  will  interpose  by  restraining  the  party  whose 
conscience  is  thus  barred  from  using  the  advantage  he  has 
improperly  gained.  On  a  bill  to  obtain  a  perpetual  injunc- 
tion against  a  suit  at  law  on  the  covenants  of  a  deed,  it  ap- 
peared that  the  property  was  conveyed  with  the  usual  cove- 
nants of  seisin  and  warranty  ;  that  at  the  time  of  the  con- 
veyance, a  railroad  company  had  acquired  a  permanent 
easement  on  the  premises  for  the  track  of  their  road,  and 
for  obtaining  gravel  and  other  materials  for  their  use  in  its 
construction  ;  that  this  right  was  known  and  understood 
by  the  grantee  at  the  time  of  the  conveyance,  and  the  mat- 
ter mutually  settled  and  arranged  in  the  appropriation  be- 
tween the  grantor  and  grantee  of  specified  portions  of  the 
damages  to  be  paid  by  the  railroad  company.  It  was  held 
that  the  complainant  was  entitled  to  the  relief  prayed,  and 
the  grantee  was  restrained  from  using  the  deed  and  its 
covenants  as  evidence  to  enforce  his  claim." 

'  Smull  V.  Jones,  i  Watts  &  Serg.,  128  ;  Phippen  v.  Stickney,  3  Mete,  384. 
It  is  not  unlawful  for  individuals  to  associate  together  for  the  purpose  of  pur- 
chasing lands  of  the  United  States  at  a  public  sale.  It  was  formerly  the  prac- 
tice of  the  government  to  sell  large  tracts  of  the  public  land  to  associated  indi- 
viduals at  reduced  prices.  And  arrangements  are  often  made  not  to  bid  against 
an  individual  who  may  have  settled  on  and  improved  the  land  he  wishes  to  pur- 
chase.    Piatt  V.  Oliver,  i  McLean,  295. 

-Taylor  v.  Giiman,  25Vt.,  411.  In  this  case  the  court  said:  "The  only 
ground  upon  which  this  testimony  can  be  received  to  control  the  legal  effect  and 


§  346-  RIGHT    OF    PARTY    TO    RESCIND    CONTRACT.  467 

§  346.  Right  of  party  to  rescind  contract. — When  a  per- 
son discovers  that  he  has  been  defrauded  into  making  an 
agreement,  if  he  seeks  to  avoid  the  agreement  on  that 
ground,  he  must  repudiate  it  and  give  back  whatever  he 
may  have  obtained  under  it.'  If,  upon  the  discovery  of  the 
fraud,  he  offer  to  return  the  property  purchased,  he  will  be 
entitled  to  rescind  the  contract,  and  to  be  restored  to  his 
former  condition  in  all  respects  ;  and  a  mere  want  of  dili- 
gence, without  knowledge  of  the  fraud,  is  not  sufficient  to 
deprive  him  of  this  right.'  It  will  be  no  answer  to  the 
plaintiff's  claim  for  rescission,  that  the  defendant  has  done 
acts  which  prevent  him  from  being  restored  to  his  original 
condition.  Since  the  plaintiff  may  elect  to  sue  for  dam- 
ages, or  to  take  such  imperfect  reparation,  by  way  of  re- 
scission, as  the  defendant  can  give,  if  he  chooses  the  latter 
alternative  the  defendant  has  no  reason  to  complain.' 
There  are  dicta  of  judges  w^hich  lay  down  the  doctrine  that 

operation  of  these  covenants,  is  the  fraud  of  the  party  in  attempting  to  enforce 
them  in  violation  of  his  agreement.  The  evidence  is  regarded  as  sufficiently 
certain  and  clear,  in  the  proof  of  that  contract,  that  the  damages  to  be  paid  by 
the  railroad  for  their  right  in  the  premises  were  to  be  divided  between  these  par- 
ties in  specified  proportions,  and  that  no  claim  was  to  be  made  on  the  grantor 
on  his  covenant  in  this  deed  for  any  matter  arising  out  of  that  negotiation  ;  and 
evidently  it  was  in  confident  reliance  upon  this  understanding  that  the  grantor 
neglected  so  to  qualify  his  covenant  that  no  right  of  action  could  arise  thereon 
for  that  matter.  Regarding  these  facts,  therefore,  as  sufficiently  proved,  and  the 
bill  as  sufficiently  setting  up  the  fraud  and  asking  for  relief  on  that  ground,  we 
think  the  case  is  brought  within  the  general  rule  upon  which  relief  is  granted.'" 
A.  procured  his  son  to  take  possession  of  a  quarter  section  of  land  for  the  pur- 
pose of  acquiring  a  preemption  right  to  the  same  under  an  agreement  between 
them  that  A.  should  pay  for  the  land  after  the  right  was  acquired,  and  the  son 
was  to  convey  one-half  of  it  to  him.  The  son  having  secured  the  title,  the 
court  refused  to  enforce  his  contract,  as  the  agreement  was  in  contravention  of 
the  preemption  laws.     Dial  v.  Hair,  18  Ala.,  798. 

1  Arnold  v.  Nichols,  64  N.  Y.,  117  ;  Eastman  v.  Plumer,  46  N.  H.,  464. 

"^  Blair  v.  Bromley,  5  Hare,  559  ;  Blennerhasset  v.  Day,  2  B.  &  B.,  i?,9  ;  Eigel- 
berger  v.  Kibler,  i  Hill  Ch.,  113;  Veazie  v.  Williams,  8  How.,  134;  Steele  v. 
Kinkle,  3  Ala.,  352  ;  Wamburzee  v.  Kennedy,  4  Dessaus  Eq.,  474  ;  Harrell  v. 
Kelly,  2  McCord,  426;  Pendleton  v.  Galloway,  9  Ohio,  178  ;  Longworth  v.  Hunt, 
II  lb.,  194;  Huston  V.  Cantril,  II  Leigh,  136;  Haywood  v.  Marsh,  6  Yerg.,  69. 
But  see  Humbert  v.  Trinity  Church,  7  Paige  Ch.,  195  ;  S.  C,  24  Wend.,  5S7. 
A  judgment  creditor  and  debtor  entered  into  an  agreement  that  the  latter  should 
pay  a  judgment  in  land,  the  price  to  be  fixed  by  persons  designated.  The 
debtor  defeated  the  performance  of  the  agreement  until  the  land  had  risen  in 
value,  and  it  was  held  that  he  could  not  maintain  a  bill  to  compel  specific  per- 
formance.    Pillow  V.  Pillow,  3  Humph.,  644. 

^  Masson  v.  Bovet,  i  Denio,  69 ;  Hammond  v.  Pennock,  61  N.  Y.,  145. 


468  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  347. 

"  the  rescission  must  be  made  after  the  party  has  had  a  rea- 
sonable opportunity  to  discover  the  fraud,  and  that  vigi- 
lance and  care  must  be  exercised.'  But  these  cases  must  be 
considered  in  connection  with  the  facts  there  presented,  and 
do  not  establish  any  general  rule  applicable  to  all  cases." ' 
The  statute  of  limitations  is  not  a  bar  to  a  suit  in  equity  in 
case  of  fraud  until  knowledge  of  the  fraud,  or  the  means 
of  knowledge,  or  such  notice  as  to  put  the  party  injured 
on  inquiry.' 

§  347.  Waiver  of  fraud. — The  party  injured  by  the 
fraud  may  waive  the  objection  by  adopting  the  contract, 
and  this  may  be  done  either  by  some  positive  act  or  by 
conduct  showing  acquiescence.'  As  where  the  vendee, 
with  full  knowledge  of  every  material  fact,  accepts  a  deed 
of  the  property ; '  or  the  vendor  ratifies  the  sale  by  bring- 
ing an  action  and  recovering  a  judgment  for  the  purchase 
money."     But  waiver  imports  and   is  founded  on  knowl- 

'  Ross  V.  Tilterton,  6  Ohio,  284  ;  Septon  v.  Friltlock,  13  Alb.  L.  J.,  27. 

-  Baker  v.  Lever,  67  N.  Y.,  304,  per  Miller,  J. 

3  Sturgis  V.  Morse,  24  Beav.,  541  ;  Browne  v.  Cross,  14  lb.,  106  ;  Parker  v. 
Bloxam,  20  lb.,  295  ;  Blennerhasset  v.  Day,  supra  ;  Salkeld  v.  Vernon,  i  Eden, 
64;  Trevelyan  v.  Charter,  4  L.  J.  Cli.,  N.  S.,  229  ;  Savery  v.  King,  5  House  of 
Lds.,  627  ;  Spackman's  Case,  34  L.  J.  Ch.,  321,  326  ;  Stanhope's  Case,  L.  R.  i, 
Ch.  161  ;  Micbaud  v.  Girod,  4  How.,  503  ;  Croft  v.  Arthur,  3  Dessaus  Eq.,  223; 
Tate  V.  Tate,  i  Dev.  &  Batt.  Eq.,  22  ;  Phalen  v.  Clark,  19  Conn.,  421  ;  Parkham 
V.  McCrary.  6  Rich.  Eq.,  140 ;  McClure  v.  Ashby,  7  lb.,  430  ;  Shannon  v.  White, 
6  lb.,  96  ;  Edmonds  v.  Goodwin,  28  Ga.,  38  ;  Buckner  v.  Calcote,  28  Miss.,  433  ; 
Munson  v.  Hallowell,  27  Texas,  457.  "  If  the  property  is  of  a  speculative  or 
precarious  nature,  it  is  the  duty  of  a  man  complaining  of  fraud  to  put  forward 
his  complaint  at  the  earliest  possible  time.  He  cannot  be  allowed  to  remain 
passive,  prepared  to  affirm  the  transaction  if  the  concern  should  prosper,  or  to 
repudiate  it  if  that  should  prove  to  his  advantage.  Parlies  who  are  in  the  situ- 
ation of  shareholders  in  companies  must,  if  they  come  to  the  court  to  be  re- 
leased from  their  shares  on  the  ground  of  fraud,  come  with  the  utmost  dili- 
gence and  promptitude.  The  question  of  delay  may  also  be  materially  affected 
by  reference  to  the  relation  which  subsists  between  the  parties.  If,  for  instance, 
the  transaction  is  between  solicitor  and  client,  a  delay  which  would  be  fatal  in 
other  cases  may  be  permitted  ;  for  the  solicitor  must  know  that  the  omis  of  sup- 
porting the  transaction  will  rest  on  him,  and  that  if  he  desire  it  to  be  upheld  he 
must  preserve  the  evidence  which  will  be  required  to  uphold  it."  Kerr  on 
Fraud  and  Mistake,  306,  307. 

"  Attwood  v.  Small,  6  CI.  &  Fin.,  432;  MacBryde  v.  Weekes,  22  Beav.,  533; 
Moffat  V.  Winslow,  7  Paige  Ch.,  124;  Crozier  v.  Acher,  lb.,  137;  Dougherty  v. 
Dougherty,  3  Halst.  Ch.,  627  ;  Crawley  v.  Timberlake,  2  Ired.  Eq.,  460. 

^  Vernol  v.  Vernol,  63  N.  Y.,  45. 

^Sanger  v.  Wood,  3  Johns  Ch.,  416;  Nelson  v.  Carrington,  4  Munf ,  332  ; 
Pettus  V.  Smith,  4  Rich.  Eq.,  197.     A  person  will  not  be  permitted  first  wilfully 


§   34^.  RIGHT    OF    PARTY    IN    CASE    OF    MISTAKE.  469 

edge  of  the  thing  alleged  to  have  been  waived.  Where,  in 
an  action  by  a  creditor  to  set  aside  a  conveyance  of  land 
made  by  the  defendant  to  his  wife  in  fraud  of  his  creditors, 
it  appeared  that  the  plaintiff  knew  of  the  transaction  at  the 
time  and  did  not  object  to  it,  but  there  was  no  evidence 
that  the  plaintiff  knew  that  the  defendant  thereby  deprived 
himself  of  the  means  of  paying  his  debts,  it  was  held  that 
the  plaintiff  was  not  estopped  from  questioning  the  con- 
veyance as  fraudulent.'  The  representatives  of  a  person 
who  has  acquiesced  in  a  transaction  occupy  no  better  posi- 
tion than  the  person  himself.^ 

§  348.  Right  of  party  in  case  of  mistake. — Mistake,  by 
which  in  this  connection  is.  meant  an  erroneous  conviction, 
under  which  a  person  either  does,  or  omits  to  do,  something 
which  he  would  not  otherwise  have  done  or  omitted,'  may 
relate  to  matter  of  law  or  to  matter  of  fact,  and  be,  ist,  by 
the  defendant  alone  ;  2d,  by  both  plaintiff  and  defendant ; 
or  3d,  by  the  plaintiff  alone.  As  the  second  and  third 
raise  the  question  as  to  how  far  the  plaintiff  may  enforce 
performance  with  a  correction  of  the  error,  mistake  wnll 
have  to  be  considered  not  only  as  a  defence  to  a  suit  for 
specific  performance,  but  also  as  entitling  the  plaintiff  to  a 
rescission  or  correction  of  the  contract.  A  mistake  of  both 
parties  avoids  the  contract  at  law,  and  equity  will  rescind  a 
contract  entered  into  under  such  circumstances.  So,  if 
a  party,  at  the  time  of  making  a   contract,  has  been   led 


to  repudiate  the  obligation  of  a  contract,  and  then  turn  round  and  ask  a  court 
of  equity  specifically  to  enforce  it.     McClellan  v.  Darrah,  50  111.,  249. 

1  Cole  V.  Tyler,  65  N.  Y.,  73. 

"^  Walmesley  v.  Booth,  2  Atk.,  25  ;  Bellew  v.  Russell,  i  B.  &  B.,  96. 

^  Haynes'  Outlines  of  Equity,  132  ;  Jeremy,  Eq.  Juris.,  B.  3,  Pt.  2,  p.  358.  Mr. 
Kerr  (Tr.  on  Fraud  and  Mistake,  p.  396)  defines  Mistake  thus:  "Some  unin- 
tentional act,  omission,  or  error,  arising  from  unconsciousness,  ignorance,  for- 
getfulness,  imposition,  or  misplaced  confidence."  Ignorance  implies  a  total 
want  of  knowledge  in  reference  to  the  subject  matter.  Mistake  admits  a  knowl- 
edge, but  implies  a  wrong  conclusion.  Where  one  is  misled  by  the  advice  of 
another,  he  may  refer  his  mistake  to  the  suggestions  which  prompted  his  action. 
But  ignorance  concedes  the  want  of  all  knowledge  ;  and  action  under  it  proceeds 
from  a  person's  own  will  not  influenced  by  the  counsel  of  another.  See  Hutton 
V.  Edgerton,  6  S.  C,  485. 


470  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  349. 

into  a  mistake,  the  contract  will  not  be  specifically  en- 
forced against  him  ;  the  advantage  which  a  party  who  has 
full  knowledge  over  the  other,  who  is  but  partially  in- 
formed, making  an  agreement  appear  too  unfair  to  admit 
of  the  aid  of  a  court  of  equity.' 

§  349.  Nature  of  objection  iji  case  of  mistake. — The 
principle  upon  which  mistake  is  allowed  as  a  defence  is, 
that  where  there  is  a  mistake  there  is  not  that  consent 
w^hich  is  essential  to  a  contract  in  equity.  Moreover,  the 
statute  of  frauds  leaves  it  open  to  the  defendant  to  pro- 
duce evidence  to  rebut  an  equity  which  the  plaintiff  claims 
has  arisen  out  of  an  agreement.''  It  has  been  argued  that 
the  admission  of  parol  evidence  to  show  mistake  in  a  writ- 
ten agreement,  either  as  a  defence  to  a  suit  for  specific  per- 
formance, or  for  the  purpose  of  correcting  the  mistake,  con- 
travenes the  statute  of  frauds.  But  "it  cannot  be  said  that 
because  the  legal  import  of  a  written  agreement  cannot  be 
varied  by  parol  evidence  intended  to  give  it  another  sense, 
therefore,  in  equity,  when  once  the  court  is  in  possession 
of  the  legal  sense,  there  is  nothing  more  to  inquire  into. 
All  the  doctrine  of  the  court  as  to  cases  of  unconscionable 
agreements,  hard  agreements,  agreements  entered  into  by 
mistake  or  surprise,  which  the  court  will  not  execute,  must 
be    struck    out,  if   it  "is  true  that  because  parol  evidence 

'  Mason  v.  Annitage,  13  Ves.,  25. 

-  Peterson  v.  Grover,  20  Me.,  363.  A  mistake  may  be  shown  by  parol,  and 
relief  be  granted  to  the  injured  party,  whether  he  sets  up  the  mistake  affirm- 
atively by  bill  or  as  a  defence.  Rogers  v.  Atkinson,  i  Kelly,  12.  "The  English 
courts  have  repeatedly  expressed  a  strong  inclination  not  to  decide  in  favor  of 
plaintiffs  seeking,  not  to  set  aside  the  agreement,  but  to  enforce  it,  when  it  is 
reformed,  by  parol  evidence.  They  affirm  that  the  difference  of  right  and  con- 
dition as  to  the  plaintiff  and  defendant,  relating  to  evidence  offered  for  the  pur- 
pose of  obtaining  a  decree  or  resisting  it,  exists  in  the  code  of  every  civilized  na- 
tion. The  ground  of  the  distinction  is  this:  when  a  party  has  entered  into  a 
written  agreement,  and  seeks  as  plaintiff  a  specific  performance  of  it,  he  must 
rely  on  the  agreement  as  it  stands.  He  can  neither  add  to,  vary,  nor  explain 
any  of  its  terms  by  parol  proof.  If  he  cannot  enforce  the  true  contract,  he  still 
retains  all  he  was  ever  in  possession  of.  He  may  suffer  disappointment,  which, 
as  the  consequence  of  his  want  of  caution  and  explicitness,  he  must  bear.  But 
not  so  with  the  defendant.  He  might  encounter  not  disappointment  only,  but 
sustain  ruinous  loss,  if  compelled  specifically  to  execute  an  agreement  different 
from  that  which  he  contemplated."  Ibid.,  per  Lumpkin,  J.  See  Bellows  v. 
Stone,  14  N.  H.,  175. 


§  350-       RULE  WHERE  THERE  IS  A  MISTAKE  AS  TO  LAW.         47  I 

should  not  be  Admitted  at  law,  therefore  it  shall  not  be 
admitted  in  equity  upon  the  question  whether,  admitting 
the  agreement  to  be  such  as  at  law  it  is  said  to  be,  the  party 
shall  have  a  specific  execution,  or  be  left  to  that  court  in 
which  it  is  admitted  parol  evidence  cannot  be  introduced.'" 
"  No  person  shall  be  charged  with  the  execution  of  an 
agreement  who  has  not,  either  by  himself  or  his  agent, 
signed  a  written  agreement ;  but  the  statute  does  not  say 
that  if  a  wTitten  agreement  is  signed,  the  same  exception 
shall  not  hold  to  it  that  did  before  the  statute."' 

§  350.  Rtile  where  there  is  a  mistake  as  to  the  law. — A 
mistake  of  the  law  will  not  in  general  be  a  ground  for  re- 
sisting the  specific  performance  of  an  agreement,  nor  for 
setting  aside  a  contract  fairly  entered  into  with  full  knowl- 
edge of  the  facts.'  The  distinction  between  mistakes. of 
law  and  fact  as  a  foundation  for  equitable  relief  seems  to 
be  one  of  expediency  and  policy,  to  guard  against  the  fraud 
and  injustice  to  which  the  parties  would  otherwise  be  ex- 
posed. Where  relief  has  been  sought  solely  on  account  of 
a  mistake  of  law,  there  has  seldom  been  a  departure  from 
the  rule  that  mistake  of  law  will  not  affect  the  contracts  of 
parties,  or  excuse  them  from  the  legal  consequences  of 
their  acts. 

'  Lord  Eldon  in  Marquis  Townshend  v.  Stangroom,  6  Ves.,  328. 

^  Lord  Redesdale  in  Clinan  v.  Cooke,  I  Sch.  &  Lef.,  39. 

^  Marshall  v.  Collett,  i  Y.  &  C.  Ex.,  232,  238  ;  Cockerell  v.  Cholmeley,  i  R.  & 
My.,  418  ;  Pullen  v.  Ready,  2  Atk.,  587  ;  Gibbons  v.  Gaunt,  4  Ves.,  489;  Stock- 
ley  V.  Stockley,  i  V.  &  B.,  23,  30 ;  Mildmay  v.  Hungerford,  2  Vern.,  243 ;  Mel- 
lers  V.  Duke  of  Devonshire,  16  Beav.,  257  ;  Teed  v.  Johnson,  25  L.  J.  E.xch., 
no;  Midland  Gt.  Western  Co.  of  Ireland  v.  Johnson,  6  House  of  Lds.,  798; 
Bank  of  U.  S.  v.  Daniel.  12  Pet.,  32;  Wooden  v.  Haviland,  18  Conn.,  loi  ;  Heil- 
bron  V.  Bissell,  i  Bailey  Ch.,  430  ;  Lyon  v.  Richmond,  2  Johns  Ch.,  60  ;  Storrs  v. 
Barker,  6  lb.,  166 ;  Dow  v.  Ker,  Spear  Ch.,  413 ;  Wintermute  v.  Snyder,  2  Green 
Ch.,  489 ;  Bell  v.  Steele,  2  Humph.,  148  ;  Trigg  v.  Read,  5  lb.,  529 ;  Shotvvell  v. 
Murray,  i  Johns  Ch.,  512;  Gunter  v.  Thomas,  i  Ired.  Eq.,  195;  Brown  v. 
Armistead,  6  Rand,  594;  State  v.  Reigart,  i  Gill,  i  ;  Shafer  v.  Davis,  13  111., 
395  ;  Dill  V.  Shahan,  35  Ala.,  694;  Gwynn  v.  Hamilton,  29  lb.,  233;  Peters  v. 
Florence,  38  Pa.  St.,  194;  Smith  v.  McDougal,  2  Cal.,  586;  McMurray  v.  St. 
Louis,  etc.,  Co.,  33  Mo.,  377.  Although  a  mistake  as  to  the  law  of  a  foreign 
State  is  considered  a  mistake  of  fact  in  most  cases,  yet,  when  a  non-resident  en- 
ters into  a  contract  to  be  performed  in  another  State,  or  relating  to  lands  in  a 
foreign  State,  he  is  held  to  know  the  law  of  such  State,  and,  in  that  case,  the 
mistake  is  one  of  law.     Bentley  v.  Whittemore,  x8  N.  J.  Eq.,  366. 


472  MISRErRESENTATION,    FRAUD,    OR    MISTAKE.         §  35 1. 

§  351.  Mistake  as  to  legal  effect  of  written  instru7itent. 
— When  persons  make  just  such  an  agreement  as  they  design 
to  make,  without  fraud,  surprise,  undue  influence,  or  mistake 
of  their  rights,  but  they  are  mistaken  as  to  the  mere  legal 
effect  of  the  writing,  that  alone  will  not  be  a  ground  for  the 
interference  of  a  court  of  equity.  Nor,  as  a  general  rule, 
is  parol  evidence  admissible  to  supply  omissions,  vary  the 
legal  construction,  or  explain  the  intention.'  Evidence 
is  therefore  not  admissible  to  show  that  the  legal  result  of 
an  agreement  is  different  from  what  the  parties  supposed  it 
would  be.  There  is  in  such  a  case,  nothing  for  equity  to 
lay  hold  of.  The  parties  have  made  their  own  contract, 
and  a  court  of  equity  cannot  change  it.  Thus,  if  in  an  agree- 
ment for  the  purchase  of  land,  it  was  stipulated  that  the 
vendor  should  make  certain  warranties,  a  mistake  as  to  the 
legal  consequences  of  such  warranties  would  not  authorize 


'  Cave  V.  Holford,  3  Ves.,  650 ;  Pole  v.   Lord  Somers,  6  lb.,  309  ;  Martin  v. 
Drinkwater,  2  Beav.,  215  ;  Powell  v.  Smith,  L.  R.  14,  Eq.  85  ;  Lyon  v.  Richmond, 

3  Johns  Ch.,  60;  Jackson  v.  Kniffen,  2  Johns,  31  ;  Jackson  v.  Sill,  11  lb.,  201  ; 
Webb  V.  Rice,  6  Hill,  219;  Farrer  v.  Ayres,  5  Pick.,  404;  Dupre  v.  Thompson, 

4  Paige  Ch.,  279 ;  Adams  v.  Winne,  7  lb.,  99  ;  Irving  v.  Dekay,  9  lb.,  528  ;  Wes- 
ton V.  Foster,  7  Mete,  297  ;  Mellish  v.  Robertson,  25  Vt.,  603  ;  Good  v.  Herr, 
7  Watts  &  Serg.,  253  ;  Ruffner  v.  McConnel,  17  III.,  212  ;  Wood  v.  Price,  46  lb., 
430;  Martin  v.  Hamlin,  18  Mich.,  354  ;  Garwood  v.  Eldridge,  i  Green  Ch.,  145  ; 
Hawralty  v.  Warren,  18  N.  J.  Eq.,  124  ;  Arthur  v.  Arthur,  10  Barb.,  9  ;  Gavin  v. 
Murphy,  25  Minn.,  142  ;  i  Phil.  Ev.,  548;  Story's  Eq.  Juris.,  Sees.  113  to  127, 
1 531.  Where  in  a  contract  for  the  sale  of  real  estate,  there  was  no  fraud  or  mis- 
take in  point  of  fact,  as  the  complainant  got  the  land  which  was  pointed  out  to 
him  as  the  land  to  be  sold,  but  the  claim  of  the  complainant  was  based  upon  the 
ground  that  the  words  of  the  agreement,  because  of  a  general  expression,  by 
their  correct  and  legal  construction,  entitled  the  complainant  to  a  conveyance  of 
more  land  than  the  defendant  understood  he  was  selling,  or  than  the  complain- 
ant understood  he  was  buying,  the  court  declined  to  compel  a  conveyance  of 
additional  land,  but  left  the  complainant  to  his  remedy  at  law.  Conover  v.  War- 
dell,  20  N.  J.  Eq.,  266.  The  chancellor  said  :  "  Relief  is  asked  in  a  case  where 
the  complainant  has  got  the  precise  land  he  bargained  for,  by  the  very  lines 
pointed  out  to  him,  and  by  the  precise  lines  designated  in  the  written  contract, 
because  a  general  expression  (homestead  farm),  used  in  the  written  contract  as 
synonymous  with  this  description,  may  be  construed  to  mean  more,  by  certain 
artificial  rules  of  legal  construction.  If  one  should  sell  to  another  a  city  lot  of 
twenty-five  feet  by  one  hundred,  which  both  had  inspected  and  agreed  upon,  and 
in  the  contract  should  agree  to  convey  the  land  conveyed  to  him  by  A.  B.,  in- 
stead of  land  conveyed  by  A.  B.,  and  should  describe  it  by  metes  and  bounds  as 
a  lot  twenty-five  by  one  hundred  feet,  if  it  turned  out  that  the  tract  conveyed 
by  A.  B.  contained  twenty  acres,  the  purchaser  could  hardly  prevail  upon  a  court 
of  equity  to  order  a  conveyance  of  the  twenty  acres  for  the  price  of  one  lot,  but 
would  leave  the  complainant  to  his  remedy  at  law." 


§  351-         LEGAL    EFFECT    OF    WRITTEN    INSTRUMENT.  473 

an  application  to  a  court  of  equity  for  relief,  however  clearly 
the  mistake  was  made  out.  Where  A.  enters  into  a  con- 
tract with  B.  for  the  sale  of  property  to  him,  and,  in  the 
same  instrument,  B.  agrees  to  sell  property  to  A.,  it  cannot 
be  proved  by  parol  that  these  agreements,  w^hich  in  law  are 
independent,  were  meant  by  the  parties  to  be  dependent' 
So,  where  the  effect  of  an  agreement  is  to  give  an  option 
to  a  lessee  as  to  the  duration  of  a  term,  it  cannot  be  shown 
that  this  was  not  intended  by  the  parties."  Because  a  party 
chooses  to  speculate  upon  facts,  and  the  event  is  different 
from  what  he  anticipated,  his  mistake  will  not  be  a  ground 
for  relief.'  A  purchaser  of  land  who  accepts  a  deed  with- 
out covenants,  cannot  have  recourse  against  his  grantor  for 
a  subsequently  discovered  incumbrance  or  defect  in  the  title 
upon  showing  that  under  his  contract  of  purchase  he  might 
have  insisted  on  a  deed  with  covenants,  and  that  he  believed 
the  title  clear  when  he  accepted  one  without  covenants.*  A 
husband  made  his  will  leaving  certain  land  to  his  wife,  but 
afterward  exchanged  this  land  for  land  owned  by  H.,  the 
wife  joining  in  the  deed  to  H.,  upon  the  assurance  of  the 
draftsman,  given  to  her  and  her  husband,  that  it  would 
make  no  difference,  but  that  she  would  be  entitled  under 
the  will  to  the  land  received  by  her  husband  in  exchange  ; 
and  both  relied  upon  this  exposition  of  the  law.  The  hus- 
band having  died  without  leaving  any  real  estate  except  the 
land  conveyed  to  him  by  H.,  a  bill  in  equity  filed  by  the 
widow"  against  the  heirs  at  law  praying  that  she  might  be 
declared  entitled  under  the  will  to  all  the  land  of  which  the 
testator  died  seized,  was  dismissed  with  costs,  the  court 
holding  that  as  there  was  purely  a  mistake  of  law,  it  could 
not  be  corrected."  A.,  a  wndow,  and  her  adult  children, 
brought  a  suit  against  the  infant  heirs,  for  the  sale  of  the 

'  Croome  v.  Lediard,  2  My.  &  K.,  251.  2  Price  v.  Dyer,  17  Ves.,  356. 

*  Harris  v.  Lloyd,  5  M.  &  W.,  432. 

*  Whittemore  v.  Farrington,  76  N.  Y.,  452  ;  S.  C,  12  Hun.,  349.     See  Moran 
V.  McLarty,  75  N.  Y.,  25  ;  S.  C,  11  Hun.,  66. 

^  Gilbert  v.  Gilbert,  9  Barb.,  532. 


474  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  35 1. 

land,  one-half  of  which  she  claimed  she  owned,  and  that  the 
balance  belonged  to  the  other  parties  to  the  suit.  A  de- 
cree for  the  sale  having  been  rendered,  the  land  was  sold 
and  conveyed  to  B.  Afterward  A.  filed  a  bill  of  review, 
claiming  that  under  the  deed  of  the  land  to  her  and  her  de- 
ceased husband,  she  was  entitled  to  the  whole  of  the  land, 
and  praying  that  the  sale  might  be  set  aside,  and  the  land 
be  reconveyed  to  her.  It  was,  however,  held  that  as  the 
mistake  of  A.  was  one  of  law,  the  bill  must  be  dismissed.* 
A  father,  being  of  advanced  age,  with  a  view  to  a  final  dis- 
position of  his  property,  proposed  to  his  son  that  he  should 
buy  a  farm  belonging  to  the  father,  of  the  value  of  four 
thousand  dollars,  for  which  the  son  should  give  him  two 
promissory  notes,  one  for  two  thousand  dollars,  payable  on 
demand  with  six  per  cent,  interest,  and  the  other  for  two 
thousand  dollars,  with  five  per  cent,  interest,  payable  at  the 
death  of  the  father,  when  it  was  to  be  given  back  to  the  son 
as  his  share  of  his  father's  estate.  The  son  having  accepted 
the  proposition,  the  parties  employed  a  magistrate  to  draw 
the  necessary  legal  instruments  ;  but  owing  to  their  not  ex- 
plaining to  him  their  agreement,  he  by  mistake  drew  the  last 
mentioned  note  so  as  to  make  it  fall  due  in  three  years,  with- 
out stating  that  it  was  to  be  surrendered' to  the  son  at  the 
death  of  his  father,  and  the  note  was  signed  by  the  son  in 
ignorance  of  its  legal  effect.  An  action  having  been  brought 
by  the  father  on  the  note,  a  bill  in  equity  filed  by  the  son 
to  enjoin  such  action,  was  dismissed,  and  a  motion  for  a  new 
trial  afterward  denied."  Where  the  purchaser  of  an  equity 
of  redemption  pays  off  the  mortgage,  and  causes  it  to  be 
discharged  of  record,  he  supposing  that  his  title  is  good,  he 
cannot,  upon  discovering  his  mistake,  have  the  cancellation 
of  the  mxortgage  set  aside,  on  the  ground  that  but  for  his 
misapprehension,  he  would  have  taken  an  assignment  of 
the  mortgage  to  protect  his  title." 

'  Zollman  v.  Moore,  21  Gratt.,  313.         ^  Wheaton  v.  Wheaton,  9  Conn.,  96. 
P  3  Bentley  V.  Whittemore,  18  N.  J.  Eq.,  366.    In  Hunt  v.  Rousmanier's  Admrs., 
8  Wheat.,  174,  the  bill  alleged  that  the  plaintiff  loaned  to  the  defendants'  intes- 


§  352. 


MISTAKE    OF    LAW.  475 


§  352.  Where,  by  mistake  of  law,  writing  does  not  ex- 
press what  was  intended. — If,  however,  in  consequence  of 
a  mistake  of  the  law,  the  written  instrument  does  not  em- 
brace the  agreement  of  the  parties  as  they  understood  and 
intended,  a  court  of  equity  will  refuse  to  specifically  enforce 
the  contract,  but  will  decree  its  reformation.'  Thus,  if,  in 
the  case  of  the  warranties  before  stated,  the  deed  was  drawn 
by  one  party,  and  accepted  by  the  other  under  the  impres- 
sion that  the  language  of  the  instrument  was  sufficient  to 
create  the  warranties  stipulated,  when  the  terms  used  were 

tate  a  sum  of  money  for  which  the  latter  gave  his  two  promissory  notes,  and,  as 
collateral  security,  a  power  of  attorney  authorizing  the  plaintiff  to  execute  a  bill 
of  sale  of  two  vessels  to  himself  or  any  other  person,  and,  in  case  of  loss,  to  col- 
lect the  amount  for  which  said  vessels  were  insured  ;  that  the  intestate  died  in- 
solvent, having  paid  only  a  small  amount  on  said  notes  ;  that  the  plaintiff  gave 
notice  of  his  claim,  took  possession  of  the  vessels  on  their  arrival  in  port,  and 
advertised  the  intestate's  interest  in  them  for  sale,  which  sale  was  forbidden  by 
the  respondents,  and  this  suit  brought  to  compel  them  to  join  in  the  sale.  An 
amended  bill  further  alleged  that  it  was  agreed  between  the  parties  that  Rous- 
manier  was  to  give  a  special  security  on  the  vessels,  and  offered  to  give  a 
mortgage  ;  that,  by  advice  of  counsel,  the  power  of  attorney  was  taken  in 
preference  to  a  mortgage  ;  and  that  the  power  of  attorney  was  accordingly 
executed  in  the  full  belief  that  it  would,  and  with  the  intention  that  it 
should,  give  to  the  plaintiff  as  full  and  perfect  security  as  would  be  given 
by  a  mortgage.  A  demurrer  to  this  bill  was  sustained  by  the  circuit  court. 
But,  on  appeal  to  the  supreme  court,  the  decision  of  the  circuit  court  was 
reversed.  Marshall,  C.  J.,  said  :  "  In  this  case,  the  fact  of  mistake  is  placed  be- 
yond any  controversy.  It  is  averred  in  the  bill,  and  admitted  by  the  demurrer, 
that  the  powers  of  attorney  were  given  by  the  said  Rousmanier  and  received  by 
the  said  Hunt  under  the  belief  that  they  were,  and  with  the  intention  that  they 
should  create,  a  specific  lien  and  security  on  said  vessels.  We  find  no  case  which 
we  think  precisely  in  point,  and  are  unwilling,  where  the  effect  of  the  instrument 
is  acknowledged  to  have  been  entirely  misunderstood  by  both  parties,  to  say  that 
a  court  of  equity  is  incapable  of  affording  relief."  The  case  having,  however, 
again  come  before  the  supreme  court  (i  Pet.,  i),  the  decree  of  the  circuit  court 
was  affirmed.  Washington,  J„  in  delivering  the  opinion  of  the  latter  court,  said  : 
"  The  question  then  is,  ought  the  court  to  grant  the  relief  which  is  asked  for, 
upon  the  ground  of  mistake  arising  from  any  ignorance  of  law  ?  We  hold  the 
general  rule  to  be,  that  a  mistake  of  this  character  is  not  a  ground  for  reform- 
ing a  deed  founded  on  such  mistake ;  and  whatever  exceptions  there  may  be  to 
this  rule,  they  are  not  only  few  in  number,  but  they  will  be  found  to  have  some- 
thing very  peculiar  in  their  characters."  Where  an  executor,  acting  on  his  own 
unbiased  judgment,  bought  lands  belonging  to  the  estate  at  a  public  sale  made  by 
him  and  his  co-executors,  under  the  mistaken  supposition  that  the  will  of  the 
testator  conferred  authority  on  them  to  sell  the  real  estate,  it  was  held  that  a 
court  of  equity  would  not  relieve  him  of  his  purchase.  Dill  v.  Shahan,  25  Ala., 
694. 

'  Joynes  v.  Statham,  3  Atk.,  388 ;  Garrard  v.  Grinling,  2  Swanst.,  244 ;  Clarke 
V.  Grant,  14  Ves.,  519;  Martin  v.  Pycroft,  2  De  G.  M.  &  G.,  785;  Gordon  v. 
Marquis  of  Hertford,  2  Mad.,  106;  Fallon  v.  Robins,  16  Ir.  Ch.,  428;  Bradbury 
V.  White,  4  Me.,  391  ;  Voorhees  v.  De  Meyer,  2  Barb.,  37.  See  Pettes  v.  Bank 
of  Whitehall,  17  Vt.,  435  ;  Beardsley  v.  Knight,  10  Vt.,  185. 


476  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.        §  353. 

not  in  law  sufficient  for  that  purpose,  equity  would  in  that 
case  reform  the  deed  so  as  to  express  the  true  agreement.' 
Where  a  bond  was  executed  by  one  of  several  partners,  all 
of  the  members  of  the  firm  intending  that  the  bond  should 
bind  them,  under  a  mistake  of  both  parties  as  to  the  legal 
effect  of  the  execution  of  the  bond,  and  its  operation  to 
discharge  all  but  the  partner  who  executed  it,  and  he  was 
insolvent,  it  was  held  that  the  obligee  w^as  entitled  to  relief 
in  equity.'' 

§  353.  Misstating  law  in  settlement  of  differences. — A 
mistake  in  law  is  not  a  cause  for  setting  aside  a  compro- 
mise, entered  into  to  avoid  or  terminate  a  litigation,  where 
the  parties  have  equal  means  of  knowledge,  and  there  is 
no  fraud  or  misrepresentation  or  undue  influence  ; '  and  it 


'  Larkins  v.  Biddle,  21  Ala.,  252. 

2  McNaughten  v.  Partridge,  1 1  Ohio,  223.  In  this  case  Wood,  J.,  said  :  "  I 
do  not  know  that  I  am  authorized  by  a  majority  of  my  brethren  to  say  a  mere 
mistake  of  law  may  be  corrected.  But  I  am  authorized  to  say  that  relief  might 
be  granted  in  the  case  at  bar,  if  it  depended  on  the  case  of  mistake  made  in  the 
bill.  The  inquiry  then  is,  what  is  the  mistake  averred  in  the  bill  and  admitted 
by  the  demurrer?  Is  it  of  law  or  fact  ?  The  bond  given  by  Hall  was  precisely 
such  as  was  agreed  to  be  given.  It  was  executed  in  the  manner  it  was  agreed 
to  be  executed.     It  contained  every  stipulation  the  parties  supposed  it  contained. 

But  they  were  mistaken  in  its  legal  effect Its  operation  was  to  discharge 

H.  and  R.  Partridge,  and  charge  only  Hall,  who  was  insolvent,  with  the  debt. 
This  neither  the  complainants  nor  the  respondents  designed.  Is  it  not  then 
manifest  that  it  was  sheer  mistake  of  law  ;  and  may  not  such,  in  certain  cases, 
afford  ground  for  relief  in  equity  .''  By  two  of  the  judges  of  this  court  relief  was 
granted  in  a  case  by  no  means  dissimilar,  on  the  circuit  in  Cuyahoga  County,  at 
the  last  term.  I  cite  from  memory  only,  as  I  have  with  me  no  note  of  that  case. 
Cushing  had  been  negotiating  with  Clark,  Hilliard,  and  Clark,  for  the  purchase  of 
two  lots  of  ground.  He  concluded  not  to  complete  the  contract.  The  parties 
had  proceeded  so  far  that  two  blank  contracts  had  been  filled  up,  but  not  signed 
by  Cushing.  In  this  situation.  Hall  applied  to  purchase  the  two  lots  ;  and,  to 
avoid  trouble  and  expense,  it  was  agreed  Cushing  should  sign  the  contracts,  and 
assign  them  over  to  Hall,  one  of  the  vendors  saying  that  Cushing  would  not  be 
liable  upon  it  for  the  purchase  money,  and  Cushing  being  advised  to  the  same 
import  by  others.  Hall  failed  to  make  payment,  and  the  vendors  threatening  to 
enforce  the  collection  of  Cushing,  the  contracts  were  declared  void  as  against 
him.  In  Muskingum  county,  at  the  last  term,  a  bill  was  pending  to  enforce  the 
collection  of  interest  upon  a  mortgage,  and  a  mistake  of  law  was  set  up,  by  way 
of  defence,  that  it  was  understood  between  the  parties  by  the  terms  employed, 
that  if  the  mortgagor  paid  the  principal  punctually,  the  interest  was  not  in  law 
demandable;  and  the  court  refused  a  decree  to  the  complainant,  the  principal 
having  been  punctually  paid." 

^  Gordon  v.  Gordon,  3  Swanst.,  463 ;  Stapilton  v.  Stapilton,  i  Atk.,  2  ;  Stew- 
art V.  Stewart,  6  CI.  &  Fin.,  969 ;  Lawton  v.  Campion,  18  Beav.,  87  ;  Brooke  v. 
Lord  Mostyn,  2  De  G.  J.  &  S.,  373. 


§  354"     another's  misapprehension  of  the  law.         477 

makes  no  difference  that  only  one  of  the  parties  has  in 
fact  any  claim,  and  that  the  question  was  not  in  reality 
doubtful,  if  the  parties  themselves  considered  it  doubtful.' 
But  it  is  otherwise  when  a  person,  through  want  of  knowl- 
edge of  a  plain  and  settled  principle  of  law,  is  imposed  upon, 
and,  under  the  pretence  of  a  compromise,  made  to  surrender 
his  property  to  another.'' 

§  354.  Taking  advantage  of  another^ s  misapprehension 
of  the  lazv. — If  the  mistake  of  law  was  induced  and  en- 
couraged by  the  other  party,  or  if,  though  he  did  not  in- 
duce or  encourage  it,  he  took  advantage  of  it,  it  will  con- 
stitute a  defence  to  a  suit  for  specific  performance.'  This 
was  held  in  the  following  case  :  Cathcart  had  agreed  to 
purchase  of  Robinson  premises  worth  five  thousand  dollars 
for  eight  thousand  dollars,  for  which  Cathcart  was  to  give 
his  bonds  payable  at  future  days.  The  contract  was  drawn 
in  the  form  of  an  agreement  or  covenant,  and  concluded 
with  a  penalty  of  one  thousand  dollars,  in  which  each  bound 
himself  to  the  other.  It  was  prov^ed  that  Cathcart  refused 
to  execute  the  agreement  if  the  penalty  was  any  higher,  on 
the  ground  that  he  might  find  it  for  his  advantage  to  forfeit 
the  contract  and  pay  the  penalty  ;  and  he  explained  to 
Robinson  at  the  time  circumstances  which  might  induce 
him  to  pursue  that  course.  The  penalty  was  fixed  at  one 
thousand  dollars,  with  the  understanding,  by  Cathcart,  that 
he  could  get  rid  of  the  agreement  by  paying  that  sum ;  and 
Robinson  permitted  him  to  execute  the  agreement  under 
that  belief.'    Although  where  a  widow  elects  to  take  under 

'  Lucy  ex  parte,  4  De  G.  M.  &  G.,  356.     See  Wheeler  v'.  Smith,  9  How.,  55. 

^  Naylor  v.  Winch,  i  Sim.  &  Stu.,  555  ;  Jones  v.  Munroe,  3?  Ga.,  181. 

=*  Broughton  v.  Hutt,  3,De  G.  &  J.,  501  ;  Ramsden  v.  Hylton,  2  Ves.  Sen.,  304 ; 
Pusey  V.  Desbouvrie,  3  P.  Wms.,  315  ;  Skillman  v.  Teepl'e,  Saxton,  232  ;  Sparks 
V.  White,  7  Humph.,  86;  Drew  v.  Clarke,  Cooke  (Tenn.),  374. 

■'  Cathcart  v.  Robinson,  5  Pet.,  264.  In  this  case  Chief  Justice  Marshall,  after 
stating  the  facts,  said :  "  Mr.  Robinson,  without  hinting  that  the  object  would 
not  be  obtained  by  the  condition,  assented  to  it,  and  the  agreement  was  signed. 
If  this  be  a  correct  view  of  the  transaction,  it  is  not  simply  an  instrument  exe- 
cuted by  a  person  who  mistakes  its  legal  effect,  as  it  would  have  been  had  it 
been  prepared  with  a  penalty  of  one  thousand  dollars,  and  silently  executed  by 
Cathcart  with  full  conviction  that  it  left  him  the  option  to  perform  the  contract 


4/8  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  355. 

the  will  in  ignorance  of  her  rights  she  will  be  estopped 
from  claiming  dower,  if  the  error  is  her  own,  and  no  im- 
position has  been  practiced,  or  fraudulent  advantage  taken  ; 
yet,  if  a  widow,  who  is  acquainted  with  all  the  facts,  but  is 
wholly  unaware  that  by  law  she  has  a  right  of  dower,  is  in- 
duced, by  one  who  knows  the  law,  and  at  the  same  time 
knows  her  ignorance  of  it,  to  release  or  assign  her  dower 
for  a  totally  inadequate  consideration,  she  will  be  entitled 
to  relief.' 

§  355-  ^^^^^  ignorance  of  law  a  ground  for  relief — 
With  reference  to  ignorance  of  the  law,  as  distinguished 
from  mistake  of  the  law,  when  the  legal  principle  is  con- 
fessedly doubtful,  and  one  about  which  ignorance  may  well 
be  supposed  to  exist,  a  person  acting  under  a  misapprehen- 
sion of  the  law  may  be  relieved  in  equity.""  So,  ignorance 
of  law  may  be  one  of  the  ingredients  of  fraud  on  which 
the  court  will  act.  For  when  there  is  gross  ignorance,  or 
a  palpable  mistake  on  a  plain  and  familiar  principle  of  law, 

or  to  pay  the  penalty.  It  is  something  more.  The  assent  of  Mr.  Robinson  to 
this  reduction  of  the  penalty,  when  demanded,  avowedly  for  the  purpose  of  en- 
abling Mr.  Cathcart  to  terminate  his  obligation  by  paying  it,  is  doing  something 
active  on  his  part  to  give  effect  to  the  mistake  and  turn  it  to  his  advantage.  It 
is  in  some  measure  co-operating  with  Mr.  Cathcart  in  the  imposition  he  was 
practicing  on  himself."  After  remarking  that  the  case  was  not  as  strong  as  it 
would  have  been  had  Robinson  suggested  that  the  legal  effect  was  as  Cathcart 
supposed,  the  Chief  Justice  proceeded  :  "  No  untruth  has  been  suggested.  But 
if  Mr.  Robinson  knew  that  Mr.  Cathcart  was  mistaken,  knew  that  he  was  enter- 
ing into  obligations  much  more  onerous  than  he  intended,  that  gentleman  is  not 
entirely  exempt  from  imputations  of  suppressing  the  truth."  But  the  silence  of 
Robinson,  when  he  knew  the  legal  effect  of  the  agreement,  was  not  alone  relied 
upon  by  the  court  in  refusing  to  decree  specific  performance.  It  also  took  into 
consideration  the  inequality  between  the  price  and  the  value  of  the  land. 
Whether  the  court  would  have  refused  to  interfere  if  the  agreement  had  rested 
on  a  mutual  mistake  without  the  circumstances  of  fraud,  does  not  appear. 

'  Light  V.  Light,  21  Pa.  St.,  407.  Where  a  widow  elected  to  take  her  dower 
instead  of  a  legacy  in  lieu  thereof,  under  a  mistake  as  to  her  rights,  it  was  held 
that  the  election  might  be  revoked,  unless  the  situation  had  so  changed  since  her 
election  that  it  could  not  be  done  without  prejudice  to  the  subsequent  acquired 
rights  of  others.     Macknet  v.  Macknet,  29  N.  J.  Eq.,  54. 

■■^  Lam  mot  v.  Bowly,  6  Har.  &  Johns,  500;  Garner  v.  Garner,  2  Dessaus  Eq., 
437  ;  Mortimer  v.  Pritchard,  I  Bailey  Ch.,  505  ;  Lowndes  v.  Chisholm,  2  McCord 
Ch.,  435  ;  Champlin  v.  Laytin,  10  Wend.,  407  ;  S.  C,  i  Edw.  Ch.,  467  ;  6  Paige 
Ch.,  189;  Reservoir  Co.  v.  Chase,  14  Conn.,  123;  Hudon  v.  Ware,  15  Ala., 
149;  Moreland  v.  Atchinson,  19  Te.xas,  303;  Cooke  v.  Nathan,  16  Barb.,  342 
Cumberland  Coal  Co.  v.  Sherman,  20  Md.,  117  ;  Green  v.  Morris,  etc.,  R.R.  Co., 
12  N.  J.  Eq.,  165. 


§355-       IGNORANCE    OF    LAW    A    GROUND    FOR    RELIEF.  479 

it  may  well  give  rise  to  a  presumption,  with  admixture  of 
other  and  even  slight  circumstances,  that  there  has  been 
undue  influence,  imposition,  mental  imbecility,  surprise,  or 
that  the  confidence  of  the  party  has  been  abused/  The 
second  of  four  brothers  died,  and  the  youngest  and  eldest 
both  claimed  his  estate.  They  referred  the  question  to  a 
schoolmaster,  who  decided  that  the  youngest  was  entitled 
to  the  property,  because  lands  could  not  ascend.  Upon 
this  the  parties  agreed  to  divide  the  estate  between  them, 
and  the  eldest  brother  executed  a  release.  The  chancellor 
decreed  that  the  deed  should  be  delivered  up,  "being  ob- 
tained by  mistake  and  misrepresentation."' 

'  Rankin  v.  Mortimere,  7  W^atts,  372.  In  a  suit  for  the  specific  performance 
of  a  contract  for  tlie  sale  of  twenty-five  thousand  dollars'  worth  of  personal 
property  and  a  quany,  the  whole  valued  at  more  than  fifty  thousand  dollars,  in 
which  it  was  stipulated  that  five  thousand  dollars  of  the  purchase  money  should 
be  paid  down,  and  a  mortgage  given  to  secure  the  balance,  it  appearing  that 
both  parties  resided  in  another  State,  and  that  the  vendor  entered  into  the 
agreement  under  the  mistaken  belief  that  a  chattel  mortgage  was  valid  without 
a  retention  of  possession  of  the  property  by  him,  and  that  the  vendee  was  in- 
solvent, the  bill  was  dismissed,  the  court  remarking  that  it  was  the  right  and 
duty  of  the  vendor  to  refuse  to  execute  the  agreement  upon  discovering  the  mis- 
take.    Patterson  v.  Bloomer,  35  Conn.,  57. 

^  Lansdowne  v.  Lansdowne,  Mosely,  364.  In  Champlin  v.  Laytin,  18  Wend., 
407,  Bronson,  J.,  commented  on  the  foregoing  case  as  follows  :  "  The  facts  are 
so  briefly  stated  that  it  is  impossible  to  say  with  certainty  on  what  ground  the 
decision  proceeded.  If  there  was  any  intentional  misrepresentation,  either 
about  the  facts  or  the  law  of  the  case,  that  would  be  a  proper  ground  for  afford- 
ing relief;  and  it  is  stated  in  a  report  of  the  case  (2  Jac.  &  Walk.,  205)  that  the 
complainant  alleged  in  his  bill  that  he  had  been  surprised  and  imposed  upon  by 
his  brother  and  the  schoolmaster.  In  the  report  by  Mosely,  Lord  Chancellor 
King  is  made  to  say  that  the  maxim  of  law,  ignorantia  jtats  non  cxctisqt,  was 
in  regard  to  the  public  ;  that  ignorance  cannot  be  pleaded  in  excuse  of  crimes, 
but  did  not  hold  in  civil  cases.  Mosely  is  not  a  book  of  very  high  authority ; 
and  I  think  it  much  more  probable  that  the  case  turned  on  the  ground  of  sur- 
prise and  imposition  than  that  the  chancellor  made  use  of  the  language  imputed 
to  him.  Unless  the  case  of  Mosely  is  an  exception,  I  think  there  is  no  one  in 
the  English  books  which  affirms  the  doctrine  that  mere  mistake  in  matter  of 
law,  in  the  absence  of  all  fraud,  surprise,  circumvention,  and  undue  influence, 
furnishes  sufficient  ground  for  setting  aside  a  contract,  or  otherwise  relieving  a 
party  from  the  legal  consequences  of  his  acts."  In  the  same  case  (6  Paige  Ch., 
189),  M'Coun,  V.  C,  said:  "I  think  these  English  cases  are  sufficient  to  estab- 
lish the  correctness  of  the  position  that  a  contract  entered  into  under  a  mutual 
misconception  of  legal  rights,  amounting  to  a  mistake  of  law  in  both  contract- 
ing parties,  by  whicli  the  object  and  end  of  their  contract,  according  to  its  intent 
and  meaning,  cannot  be  accomplished,  is  as  liable  to  be  set  aside  or  rescinded  as 
a  contract  founded  on  mistake  of  matters  of  fact ;  and  that  the  court  has  the 
same  power  to  grant  relief  in  the  first  case  as  in  the  last."  On  appeal,  the 
chancellor  dissented  from  the  foregoing  proposition,  and  added  :  "  If  any  relief 
can  be  had  in  such  a  case,  it  must  be  upon  the  ground  of  a  distinction  between 


480       MISREPRESENTATION,  FRAUD,   OR  MISTAKE.    §§356,357. 

§  356.  Comprojnise  not  affected  by  legal  decision. — A 
subsequent  decision  of  a  higher  court  in  another  case,  giv- 
ing a  different  exposition  of  a  point  of  law  from  the  one 
declared  and  known  when  a  settlement  between  the  parties 
takes  place,  cannot  have  a  retrospective  effect  and  overturn 
such  settlement.' 

§  357.  Misappj'ehension  of  both  law  and  fact. — Where 
there  is  a  mistake  of  fact  as  well  as  of  law,  there  is  an  ex- 
ception to  the  rule  that  equity  cannot  relieve  in  cases  of 
mere  ignorance  or  mistake  of  law.  Thus,  where  adminis- 
trators gave  their  bond  for  a  debt  which  their  intestate,  a 
trustee,  did  not  owe,  and  was  not  authorized  to  pay,  and 

an  actual  mistake  proved  to  have  occurred,  as  in  the  case  of  Lawrence  v.  Beau- 
bien,  2  Bailey,  623,  and  a  mere  ignorance  of  the  law  which  was  applicable  to 
the  facts  of  the  case  as  known  to  both  parties.  And  it  must  also  be  where,  as 
in  that  case,  the  party  seeking  such  relief  acquired  no  beneficial  interest  by  the 
contract,  and  where  the  adverse  party  has  parted  with  nothing  which  was  of 
any  real  value."  A  court  of  equity  will  not  render  a  decree  reforming  a  con- 
tract founded  upon  the  complainant's  ignorance  of  the  existence  of  a  statute 
where  the  allegation  of  ignorance  is  put  in  issue  by  the  answer.  There  are  no 
means  of  proving  a  party's  ignorance  of  the  existence  of  a  statutory  provision. 
A  case  might  occur  in  which  a  person  could  prove  that  he  acted  under  a  mistake 
of  law  ;  and  courts  have  sometimes  granted  relief  in  such  cases  where  it  could 
be  done  without  impairing  the  rights  of  those  who  were  not  aware  of  the  exist- 
ence of  such  mistake  when  their  rights  accrued.  Hall  v.  Reed,  2  Barb.  Ch., 
500.  In  Lawrence  v.  Beaubien,  2  Bailey,  623,  Johnson,  J.,  who  deli\ered  the 
opinion  of  the  court,  makes  a  distinction  between  mere  ignorance  of  the  law, 
which  is  incapable  of  proof,  and  a  mistake  of  law,  which  can  be  established  by 
evidence.  He  says  the  former  is  passive,  and  does  not  presume  to  reason  ;  and 
unless  we  are  permitted  to  dive  into  the  secret  recesses  of  the  heart,  its  pres- 
ence is  incapable  of  proof.  But  the  latter  supplies  palpable  evidence  of  its  ex- 
istence. In  the  New  York  court  of  errors,  in  Champlia  v.  Laytin,  18  Wend., 
423,  Paige,  Senator,  adopted  this  distinction. 

'  Lyon  v.  Richmond,  2  Johns  Ch.,  51.  Reversed  in  error,  14  Johns,  501,  on 
other  grounds.  "  The  courts  do  not  undertake  to  relieve  parties  Irom  their  acts 
and  deeds  fairly  done  on  a  full  knowledge  of  facts,  though  under  a  mistake  of 
the  law.  Every  man  is  to  be  charged  at  his  peril  with  a  knowledge  of  the  law. 
There  is  no  other  principle  which  is  sale  and  practicable  in  the  common  inter- 
course of  mankind.  And  to  permit  a  subsequent  judicial  decision  in  any  given 
case,  on  a  point  of  law,  to  open  or  annul  everything  that  has  been  done  in  other 
cases  of  the  like  kind  for  years  before,  under  a  different  understanding  of  the 
law,  would  lead  to  the  most  mischievous  consequences.  Fortunately  for  the 
peace  and  happiness  of  society,  there  is  no  such  pernicious  precedent  to  be 
found.  The  case,  therefore,  is  to  be  decided  according  to  the  existing  state  of 
things  when  the  settlement  in  question  took  place."  Kent,  Ch.,  in  Lyon  v,  Rich- 
mond, supra.  "The  principles  of  the  common  law  have  been  followed  more 
closely  in  this  State  (New  York),  than  they  have  in  some  of  the  other  States,  and 
our  courts  have  never  held  but  one  language  on  this  question."  Bronson,  J.,  in 
Champlin  v.  Laytin,  18  Wend.,  407;  reierring  to  the  general  rule  m  relation  to 
mistake  of  law. 


§  35^-  MISTAKE  OF  FACT  MUST  NOT  BE  FAULT  OF  PARTY.  48 1 

they  were  not  trustees  in  law  or  fact,  and  were  not  author- 
ized to  pay,  and  did  not  themselves  owe  the  debt,  but  gave 
the  bond  in  mistake  of  their  rights,  it  was  held  that  the 
bond  was  relievable  against  in  equity/ 

§  358.  Mistake  of  fact  must  not  be  fattlt  of  party  com- 
plaining of  it. — The  mistake  most  frequently  alleged  as  a 
ground  for  equitable  relief,  and  the  one  in  which  the  juris- 
diction is  liberally  exercised  to  prevent  injustice,  is  mistake 
in  matter  of  fact,  which  is  free  from  the  inconveniences, 
embarrassments,  and  objections  appertaining  to  mistake  in 
matter  of  law/  Fraud  implies  misconception  or  mistake 
in  the  party  defrauded,  with  the  additional  circum.stance 
that  the  other  party  intentionally  causes  the  mistake/  No 
general  rule  can  be  laid  down  as  to  what  kind  or  degree  of 
mistake  is  relievable  in  equity.  But  it  must  not  be  owing 
to  a  want  of  reasonable  diligence ;  *  it  being  the  policy  of 
courts  to  administer  relief  only  to  the  vigilant,  and  not 
where  the  mistake  is  imputable  to  the  party's  own  improvi- 
dence and  inattention."  The  rule  that  he  who  seeks  equity 
must  do  equity,  does  not  make  one  who  has  committed  an 
error  responsible  for  all  the  remote  and  possible  conse- 
quences which  may  arise  out  of  its  leading  others  to  com- 

'  Gross  V.  Leber,  47  Pa.  St.,  520.  If  a  court  of  equity  "  can  relieve  against  a 
mistake  in  law  in  any  case  where  the  defendant  has  been  guilty  of  no  fraud  or 
unfair  practice,  which  is  at  least  very  doubtful,  it  must  be  in  a  case  in  which 
the  defendant  has  in  reality  lost  nothing  whatever  by  the  mistake,  and  where 
the  parties  can  be  restored  to  the  same  situation  substantially,  in  which  they 
were  at  the  time  the  mistake  happened."  Walworth,  Chancellor,  in  Crosier  v. 
Acer,  7  Paige  Ch.,  137.  Where  a  man,  through  the  mistake  of  his  counsel,  in 
whom  he  had  confidence,  gave  his  note  for  more  than  he  was  legally  bound,  it 
was  held  that  he  was  relievable  in  equity.     Fitzgerald  v.  Peck,  4  Litt.,  125. 

^Jenks  V.  Fritz,  7  Watts  &  Serg.,  201;  Merchants' Bank  v.  Mclntyre,  2 
Sandf.,  431  ;  Ketchum  v.  Catlin,  21  Vt.,  191. 

^  Leake  on  Contracts,  182. 

^  Duke  of  Beaufort  v.  Neeld,  12  CI.  &  Fin.,  248,  286  ;  Wild  v.  Hillas,  18  L.  J. 
Ch.,  170;  Leuty  v.  Hillas,- 2  De  G.  &  J.,  no;  Jouzin  v.  Toulmin,  9  Ala.,  662  ; 
Lamb  v.  Harris,  8  Ga.,  546;  Daniel  v.  Mitchell,  i  Story,  172;  Warner  v. 
Daniels,  i  Woodb.  &  Minot,  90;  Ferson  v.  Sanger,  lb.,  138;  Western  R.R. 
Co.  V.  Babcock,  6  Mete,  346;  Hill  v.  Bush,  19  Ark.,  522;  Diman  v.  Providence, 
etc.,  R.R.  Co.,  5  R.  L,  130;  Capehart  v.  Moon,  3  Jones  Eq.,  178;  Taylor  v. 
Fleet,  4  Barb.,  95  ;  Penny  v.  Martin,  4  Johns  Ch.,  566 ;  Kite  v.  Lumpkin,  40 
Ga.,  506. 

^  Wood  v.  Patterson,  4  Md.  Ch.,  335  ;  Custard  v.  Custard,  25  Texas,  49. 

31 


482  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  359. 

mit  errors  by  placing  confidence  in  its  accuracy,  instead  of 
examining  for  themselves.  That  would  make  a  person 
responsible  not  only  for  the  consequences  of  his  own 
errors,  but  for  the  negligence  of  others.'  Where  a  party 
sought  to  be  released  from  his  purchase  at  an  execution 
sale,  on  the  ground  that  not  having  heard  the  terms  of  sale, 
or  ever  before  attended  such  a  sale,  he  supposed  that  the 
amount  of  a  mortgage  on  the  property  would  be  deducted 
from  his  bid,  it  was  held  that  as  the  mistake  had  arisen 
from  his  own  negligence,  he  was  not  entitled  to  relief." 

§  359.  Kind  of  mistake  which  will  be  relieved  against. 
— Mistake  to  be  a  cause  for  the  interference  of  a  court  of 
equity  must  be  material ;  that  is,  of  the  essence  of  the 
transaction,  and  without  which  it  is  not  probable  the  trans- 
action would  have  taken  place.*  Where  both  parties  were 
mistaken  as  to  the  duration  of  a  leasehold  interest,  so  that 
the  price  was  very  much  less  than  it  would  have  been  if  the 
extent  of  the  interest  had  been  known,  and  the  vendors 
brought  a  suit  for  the  reassignment  of  the  extra  term,  it 
was  held  that  as  the  lease  was  the  substance  sold,  and  not 
a  term  of  the  supposed  duration,  and  the  vendors  should 
have  been  acquainted  with  the  condition  of  the  property 
they  offered  for  sale,  the  bill  must  be  dismissed.*  The 
mere  circumstance  that  the  mistake  is  in  a  material  matter, 
is  not,  without  other  considerations,  a  ground  for  the  inter- 
position of  the  court.     To  obtain  this,  it  must  be  uncon- 


'  Peterson  v.  Grover,  20  Me.,  363.  As  between  the  purchaser  of  an  estate, 
and  a  third  person  claiming  an  equitable  interest  in  the  property,  the  purchaser 
may,  under  certain  circumstances,  be  charged  with  implied  notice  of  the  con- 
tents of  a  deed  whether  he  examined  it  or  not ;  and  he  may  also  be  chargeable 
with  a  fact  which  came  to  the  knowledge  of  his  attorney  or  agent  for  making 
the  purchase.  But  this  rule  is  not  applicable  as  between  the  vendor  and  the 
purchaser.     Champlin  v.  Laytin,  18  Wend.,  407  ;  S.  C,  6  Paige  Ch.,  189. 

-  Upham  V.  Hamill,  il  R.  I.,  565. 

'  Stone  V.  Godfrey,  5  De  G.  M.  &  G.,  76;  Carpmael  v.  Powis,  10  Beav.,  39  ; 
M'Ferran  v.  Taylor,  3  Cranch,  268;  Harrod  v.  Cowan,  Hardin,  512  ;  Trigg  v. 
Read,  5  Humph.,  529;  Weaver  v.  Carpenter,  10  Leigh,  37;  Segur  v.  Tingley, 
II  Conn.,  134. 

'  Okill  V.  Whittaker,  i  De  G.  &  Sm.,  83 ;  Affd.  2  Phil.,  338. 


§  360.  AGREEMENT    MADE    TO    CONFORM.  483 

scionable  for  the  party  deriving  benefit  from  the  mistake 
to  retain  his  advantage.' 

§  360.  Agreement  made  to  confomn  to  what  was  in- 
tended.— Equity  looks  rather  to  the  intention  of  the  parties 
than  to  the  phraseology  of  the  contract.  When,  therefore, 
such  intention  is  not  correctly  expressed,  the  court  will  re- 
fuse to  decree  specific  performance  ;  ^  but  will  carry  out  the 
original  intention  of  the  parties,'  notwithstanding  the  lan- 
guage employed  is  in  the  very  words  intended.^  When,  in 
case  of  mistake,  the  parties  can  be  placed  in  the  same 
position  they  were  in  before  the  contract  was  entered  into, 
the  court  will  reform  the  instrument,  and  give  the  defend- 
ant the  option  to  have  the  contract  annulled,  or  to  take  it 
in  the  form  which  was  intended.^     If  the  parties  leave  out 

'  I  Fonb.  Eq.,  B.  i,  Ch.  2,  Sec.  7  ;  Warner  v.  Daniels,  supra  ;  Crowder  v. 
Langdon,  3  Ired.  Eq.,  476.  "  In  all  such  cases,  the  ground  of  relief  is  not  the 
mistake  or  ignorance  of  material  facts  alone,  but  the  unconscientious  advantage 
taken  by  the  party  by  the  concealment  of  them."'    Story's  Eq.  Juris.,  Sec.  147. 

*  James  V.  State  Bank,  17  Ala.,  69;  Mechanics'  Bank  v.  Lynn,  i  Pet.,  376; 
King  V.  Hamilton,  4  lb.,  311;  Bradbury  v.  White,  4  Me.,  391  ;  Mitchell  v.  Nichol- 
son, 8  Yerg.,  194;  Morganthau  v.  White,  i  Sweeney,  395.  A  court  will  not  en- 
force a  deed  or  obligation  in  an  event  not  anticipated  by  either  of  the  parties, 
and  inconsistent  with  their  original  intention.  Quick  v.  Stuyvesant,  2  Paige  Ch., 
84.  Where  a  contract  of  sale  was  made  by  a  sheriff  under  a  decree  for  the  fore- 
closure of  a  mortgage,  and,  after  the  sale,  it  was  first  discovered  that  the  wife 
of  the  mortgagor  had  not  executed  the  mortgage  so  as  to  release  her  right  of 
dower,  a  decree  for  specific  performance  was  denied,  although  the  sale  was  made 
subject  to  all  incumbrances.     Ely  v.  Perrine,  2  N.  J.  Eq.  (i  Green),  396. 

'^  Hunt  v.  Freeman,  i  Ohio,  490;  Clopton  v.  Martin,  11  Ala.,  187  ;  Langdon 
V.  Keith,  9  Vt.,  299;  Firmstone  v.  De  Camp,  2  C.  E.  Green,  317  ;  Webster  v. 
Harris,  16  Ohio,  490 ;  Frisby  v.  Ballance,  5  111.  (4  Scam.),  287  ;  Ring  v.  Ash- 
worth,  3  Iowa,  452;  Mosby  V.  Wall,  23  Miss.,  31  ;  Leavitt  v.  Palmer,  3  N.  Y., 
19;  McElderry  v.  Shirley,  2  Md.,  25  ;  Dulanyv.  Rogers,  50  lb.,  524;  Cummings 
V.  Steele,  54  Miss.,  647.  The  interposition  of  a  court  of  equity  to  correct  mis- 
takes by  ordering  a  proper  deed  to  be  executed  according  to  the  intent  of  the 
parties,  is  a  very  ancient  doctrine.  Spence's  Eq.  Juris.,  Vol.  I.,  p.  633,  note. 
Cases  have  often  occurred  in  which  parties  have  been  relieved  against  bargains 
and  agreements  entered  into  under  a  misconception  of  their  rights.  Bingham 
V.  Bingham,  i  Ves.  Sen.,  126  ;  Cocking  v.  Pratt,  lb.,  400. 

^  Smith  V.  Jordan,  13  Minn.,  264. 

*  Harris  v.  Pepperel,  L.  R.  5,  Eq.  i.  The  weight  of  authority  is  in  favor  of 
the  power  of  a  court  of  equity  to  reform  written  instruments,  whether  such  re- 
lief is  sought  by  the  plaintiff  or  defendant,  and  whether  the  matter  to  be  cor- 
rected has  originated  in  fraud  or  mistake.  Smith  v.  Allen,  Saxton,  43 ;  Hen- 
drickson  v.  Ivins,  lb.,  562.  A  bond  may  be  reformed  on  full  and  satisfactory 
proof  of  mistake,  even  against  sureties,  upon  the  principle  that  where  a  mistake 
is  manifest,  the  court,  in  the  exercise  of  its  ordinary  discretion,  will  correct  it, 
and  hold  the  party  according  to  his  original  intention.  Smith  v.  Allen,  supra. 
Courts  of  admiralty  cannot  maintain  an  original  bill  for  specific  performance,  or 


484  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  36 1. 

of  the  written  contract  a  stipulation  by  mistake,  specific 
performance  will  be  decreed  of  the  whole  agreement,  in- 
cluding the  stipulation;'  but  not  if  there  was  no  mistake, 
and  the  parties  did  not  intend  that  the  omitted  stipulation 
should  form  a  part  of  the  agreement,  and  its  insertion  is 
sought  as  a  matter  of  propriety.' 

§  361.  Mistake  of  one  party  without  the  fault  of  the 
other. — At  law,  where  it  is  claimed  that  the  writing  does 
not  truly  represent  the  intention,,  it  must  be  shown  that 
both  parties  understood  the  contract  as  it  would  have  been 
but  for  the  mistake ;  and  it  is  not  enough  to  show  the  un- 
derstanding of  one  of  the  parties  only.'  But  a  court  of 
equity  will  not  enforce  the  specific  performance  of  an  agree- 
ment against  a  party  who  entered  into  it  under  a  mistake, 
although  the  plaintiff  was  not  guilty  of  any  improper  con- 
duct and  the  mistake  was  solely  that  of  the  defendant,  if  it 
appears  inequitable  that  there  should  be  a  specific  perform- 
ance/ A  contract  may  be  valid  in  itself,  and  yet  specific 
performance  be  refused.  Where  a  person  has  been  induced 
by  some  mistake  or  misrepresentation  to  enter  into  a  con- 
to  correct  a  mistake,  or  to  grant  relief  against  a  fraud,  though  they  may  perhaps 
sometimes,  like  courts  of  law,  perform  what  may  be  deemed  analogous  functions. 
But  if  the  contract  be  an  executed  maritime  contract,  the  jurisdiction  attaches  ; 
and  the  admiralty  may  then  administer  relief  upon  the  contract  according  to 
equity  and  good  conscience.   Andrews  v.  Essex  Ins.  Co.,  3  Mason,  6,  per  Story,  J. 

'  Joynes  v.  Statham,  3  Atk.,  388;  Fife  v.  Clayton,  13  Ves.,  546;  Gwynn  v. 
Lethbridge,  14  lb.,  585  ;  Bradford  v.  Union  Bank  of  Tennessee,  13  How.,  57. 

-  Hare  v.  Shearwood,  i  Ves.,  241  ;  Haynes  v.  Hare,  i  H.  Blk.,  659;  Lord  Irn- 
ham  V.  Child,  i  Bro.  C.  C,  92  ;  Lord  Portmore  v.  Morris,  2  lb.,  219  ;  Cripps  v. 
Gee,  4  lb.,  472  ;  Pitcairn  v.  Ogbourne,  2  Ves.  Sen.,  375.  See  Betts  v.  Gunn,  31 
Ala.,  219;  Thompson  Scale  Manf.  Co.  v.  Osgood,  26  Conn.,  16.  Wherea  party, 
promising  to  insert  a  particular  clause  in  a  written  contract,  leaves  it  out  know- 
ingly, but  without  fraudulent  intent,  specific  performance  will  be  decreed  of  the 
whole  agreement  including  the  omission.     Jackson  v.  Cator,  5  Ves.,  688. 

^  Lyman  v.  Utica  Ins.  Co.,  17  Johns,  373;  Lies  v.  Stub,  6  Watts,  48;  Coff- 
ing  V.  Taylor,  16  111.,  457  ;  Ruffner  v.  McConnell,  17  lb.,  212  ;  Gordere  v.  Down- 
ing, 18  lb.,  492  ;  Farley  v.  Bryant,  32  Me.,  474;  Wemple  v.  Stewart,  22  Barb., 
154  ;  Nevius  v.  Dunlap,  33  N.  Y.,  676 ;  Leake  on  Contracts,  168,  169. 

*  Malins  v.  Freeman,  2  Keen,  25  ;  Alvanly  v,  Kinnaird,  2  Mac.  &  G.,  7  ;  Web- 
ster V.  Cecil,  30  Beav.,  64 ;  ("oles  v.  Brown,  10  Paige  Ch.,  526;  Ely  v.  Perrine,  i 
Green  Ch,,  396.  Where  an  executor  erroneously  supposing  that  he  had  the  con- 
sent of  his  co-executors,  contracted  for  the  sale  of  his  testator's  leaseholds,  it  was 
held  on  the  ground  of  mistake,  that  the  purchaser  could  not  compel  specific  per- 
formance. Sneesby  v.  Thorne,  i  Jur.  N.  S.,  336.  See  Sherman  v.  Wright,  49 
N.  Y.,  227. 


§  36l.  MISTAKE    OF    ONE    PARTY.  485 

tract  with  another,  without  the  fault  of  the  latter,  the  court 
may  leave  the  former  to  pay  the  value  of  the  contract  in 
damages,  instead  of  compelling  him  to  perform  what  he 
never  intended.'  Where,  therefore,  a  vendor  at  auction 
altered  the  particulars  of  sale  by  reserving  a  right  of  way, 
and  directed  the  property  to  be  sold  according  to  such 
altered  particulars,  and  the  auctioneer  by  mistake  signed 
the  original  particulars,  it  was  held  that  the  vendor  could 
not  be  compelled  to  specifically  perform  according  to  those 
particulars,  although  the  vendee  had  purchased  in  ignorance 
of  the  alteration.'  So,  where  the  owner  of  property  offered 
by  letter  to  sell  it  for  twelve  hundred  and  fifty  pounds,  in- 
stead of  twenty-two  hundred  and  fifty,  which  he  intended, 
and  the  party  to  whom  he  wrote,  accepted  the  offer  by  let- 
ter, the  court  refused  to  enforce  the  contract  at  the  price 
named,  the  vendor  having  given  notice  of  the  mistake  as 
soon  as  he  discovered  it.'  So,  where  the  reversionary  inter- 
est in  land  under  a  lease  was  sold,  without  any  mention  in 
the  contract  of  sale  of  the  rent,  and  the  vendor  intended 
that  the  rent  should  be  paid  to  him  during  the  term,  a  bill 
by  the  vendee  for  specific  performance  was  dismissed,  but 
without  prejudice  to  his  rights  at.  law.'  Specific  perform- 
ance will  be  refused  against  a  vendee  who  supposes  that  cer- 
tain property  which  formed  a  material  inducement  to  the 
purchase,  was  included  in  the  sale,  but  which  was  not  in- 
cluded ; '  also  against  a  vendee  who  inadvertently  buys  a  lot 
at  auction  under  the  mistake  that  it  is  another  lot  which  he 
intended  to  purchase. °  But  if  there  was  no  good  reason 
for  the  mistake,  it  will  not  avail  the  purchaser  as  a  defence.' 
Where  a  person  wishing  to  own  property  in  Essex,  con- 


'  Calverly  v.  Williams,  [  Ves.,  210.  *  Manser  v.  Back,  6  Hare,  443. 

2  Webster  v.  Cecil,  30  Beav.,  64. 

*  Wycombe  R.R.  Co.  v.  Donnington  Hospital,  L.  R.  i,  Ch.  268. 
^  Stapylton  v.  Scott,  13  Ves.,  426. 

^  Malins  v.  Freeman,  2  Ke.,  25.     For  the  circumstances  of  this  case,  set  posl, 
§363. 

'  Swaisland  v.  Dearsley,  29  Beav.,  430. 


486  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  362. 

tracted  to  purchase  a  house  on  the  north  side  of  the  river 
Thames,  which  he  supposed  was  in  that  county,  but  which 
proved  to  be  in  Kent,  he  was  compelled  in  equity  to  com- 
plete the  purchase.' 

§  362.  Where  mistake  of  dcfe^tdant  is  caused  by  plain- 
tiff.— It  follows  from  the  principles  previously  discussed, 
that  if  the  defendant  has  been  misled  to  his  prejudice  by 
the  plaintiff,  specific  performance  will  not  be  decreed  ;  such 
conduct  often  partaking  of  the  nature  of  fraud,  if  not  posi- 
tively fraudulent.  Where,  in  a  sale  at  auction,  the  vendee 
threw  the  vendor  off  his  guard  by  making  him  believe  that 
the  vendee  did  not  intend  to  bid,  and  by  a  misapprehension 
on  the  part  of  the  person  employed  to  make  the  reserved 
bidding,  the  property  w^as  knocked  down  to  the  vendee, 
the  court,  although  there  was  no  fraud,  refused  to  enforce 
the  sale.'  Again,  real  estate  being  sold  in  lots,  it  was  stated 
in  the  particulars  that  the  timber  on  lots  four  and  five  was 
to  be  taken  at  a  valuation.  One  of  the  conditions  of  sale 
also  stated  (speaking  generally)  that  the  purchaser  was  to 
take  the  timber  at  a  valuation.  It  was  held,  that  as  the 
declaration,  with  reference  to  lots  four  and  five,  was  calcu- 
lated to  mislead  the  purchaser  as  to  the  meaning  of  the 
conditions,  supposing  the  right  construction  of  them  was 
that  it  applied  to  all  the  lots,  it  would  be  inequitable  to 
enforce  specific  performance  of  the  contract.'  On  a  sale 
of  a  villa  residence  containing  a  little  over  two  acres,  the 
plan  exhibited  the  western  side  bounded  by  a  strip  of  land 
covered  with  a  mass  of  shrubs.     The  proposed  purchaser, 

'  Shirley  v.  Davis,  cited  6  Ves.,  678 ;  7  lb.,  270.  Where  a  person  enters  into 
a  contract  with  a  railroad  company  to  permit  it  to  lay  its  rails  across  his  land 
by  any  one  of  several  routes  which  it  may  select,  he  cannot  resist  the  perform- 
ance of  his  agreement  on  the  ground  that  he  had  reason  to  believe,  either  on  his 
own  judgment,  or  from  the  representations  of  the  company,  or  other  persons, 
that  a  route  would  be  adopted  different  from  the  one  which  was  taken.  "  If,  in 
fact,  the  one  route  would  cause  more  damage,  and  the  land-owner  intends  to 
claim  larger  compensation  in  one  case  than  the  other,  the  alternative  must  be 
stipulated  for  in  the  agreement  itself."  Western  R.R.  Corp.  v.  Babcock,  6  Mete, 
346,  per  Shaw,  C.  J. 

-  Mason  v.  Armitage,  13  Ves.,  25  ;  Pym  v.  Blackburn,  3  lb.,  34. 

^  Higginson  v.  Clowes,  15  Ves.,  516. 


§  2,6^.       EXAMPLES  OF  MISTAKE  BY  DEFENDANT  ALONE.  487 

inspecting  the  property  with  the  plan  in  his  hand,  found 
on  the  western  side  a  belt  of  shrubs  and  three  large  trees, 
and  beyond  them  an  iron  fence.  He  then  bid  for  the  prop- 
erty, believing  that  it  extended  to  the  fence.  He  subse- 
quently found  that  the  three  trees  and  iron  fence  stood  on 
the  adjoining  land,  the  real  boundary  being  indicated  by 
stumps  which  were  concealed  by  the  shrubs.  The  plan 
represented  all  of  the  trees  which  stood  on  the  property, 
but  did  not  show  the  three  large  trees.  If  the  latter  had 
been  on  the  property  it  would  have  been  more  valuable. 
It  was  held  (reversing  the  decision  of  the  vice-chancellor), 
that,  as  the  purchaser  was  misled  by  the  fault  of  the  ven- 
dor, specific  performance  could  not  be  decreed  against  him, 
and  that  whether  the  purchaser  wished  to  escape  from  the 
bargain  for  a  totally  distinct  reason"  was  a  question  with 
which  the  court  had  no  concern.' 

§  363.  Examples  of  mistake  by  defeiidaiit  alone. — It  is 
to  be  borne  in  mind,  however,  that,  as  previously  stated, 
the  relief  is  not  confined  to  cases  in  which  the  defendant 
has  been  led  into  error  by  the  plaintiff,  but  that  it  extends 
to  mistake,  which  is  wholly  due  to  the  defendant  himself, 
or  his  agent.''  Thus,  an  error  in  a  deed  was  relieved 
against  at  the  suit  of  the  person  who  drew  the  convey- 
ance.' So,  intoxication  may  be  a  defence,  though  in  no- 
wise caused  by  the  plaintiff.*  Where  the  agent  of  a  party 
went  to  an  auction-room,  and,  after  listening  to  the  descrip- 
tion of  the  property  about  to  be  sold,  which  was  entirely 
different  from  that  which  he  was  employed  to  buy,  hastily 
and  inconsiderately  bid  for,  and  ultimately  purchased  it, 
thinking  it  to  be  the  property  for  which  he  was  to  bid,  the 
court  refused  to  enforce  the  sale.'  So,  where  the  owner  of 
property  to  be  sold  at  auction  withdrew  part  of  it,  but  the 
auctioneer  by  mistake  sold  the  whole,  specific  performance 

J  Denny  v.  Hancock,  L.  R.  6,  Ch.  i.  ^  Ante,  §  361. 

*  Ball  V.  Storie,  i  Sim.  &  Stu.,  210. 

*  Cooke  V.  Clayworth,  18  Ves.,  12  ;  Nagle  v.  Baylor,  3  Dr.  &  W.,  60. 

*  Malins  v.  Freeman,  2  Ke.,  25. 


488  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  364. 

was  refused,  thouo;h  the  purchaser  was  justified  in  believing 
that  he  bought  the  whole.'  And  where  an  erroneous  de- 
scription of  parcels  as  to  quantity  was  prepared  by  the  ven- 
dor's solicitor  from  a  previous  description  made  out  by  an- 
other solicitor  from  the  report  of  a  surveyor,  the  court  de- 
clined to  enforce  the  sale  against  the  vendor,  except  with 
compensation.'  Where  a  manor  was  sold  comprising  valu- 
able property,  which  the  vendor,  being  ignorant  of  its  ex- 
tent, did  not  know  was  within  it,  and  both  parties,  at  the 
time  of  the  contract,  supposed  that  it  included  something 
different,  specific  performance  was  refused.'  A  defendant, 
being  tenant  for  life  of  an  estate  under  a  settlement  con- 
taining a  proviso  that  if  he  purchased  and  settled  an  estate 
in  fee  simple  in  possession,  in  some  convenient  place  or 
places,  of  a  value  equal  to,  or  greater,  than  the  estate  com- 
prised in  the  settlement,  this  estate  should  become  the  prop- 
erty of  the  tenant  for  life,  and  supposing  that  he  had,  with 
the  concurrence  of  his  wife,  an  absolute  power  of  disposi- 
tion over  the  settled  estate,  entered  into  a  contract  of  sale, 
the  court  refused  to  enforce  the  sale  by  an  exercise  of  the 
proviso  in  the  settlement,  on  the  ground  that  such  a  per- 
formance of  the  contract  would  be  attended  with  difficulty, 
and  that  the  defendant  had  not  contracted  for  that  purpose 
or  with  that  intention." 

§  364.  Who  entitled  to  relief. — In  case  of  mistakes  in 
written  instruments,  a  court  of  equity  will  interfere  as  be- 
tween the  original  parties  or  those  claiming  under  them  in 
privity,  such  as  personal  representatives,  heirs,  devisees, 
legatees,  assignees,  voluntary  grantees,  judgment  creditors 
or  purchasers  from,  them  with  notice  of  the  facts  ;  and  it 
will  make  no  difference  if  the  property  embraced  in  the 


'  Manser  v.  Back,  6  Hare,  443. 

'  Leslie  v.  Tompson,  9  Hare,  268.     And  see  Alvanley  v.  Kinnaird,  2  M'N,  & 
G.,  7  ;  Helsham  v.  Langley,  i  Y.  &  C.  C.  C,  175. 
^  Baxendale  v.  Scale,  19  Beav.,  601. 
^  Howell  V.  George,  i  Mad.,  i  ;  Fry  on  Specif.  Perform.,  216. 


§§  3^5'  3^6.    MISTAKE  AS  TO  WHAT  IS  MEANT  TO  BE  SOLD.   489' 

deed  has  been  sold  upon  execution,  the  purchaser,  with 
notice,  taking  no  more  than  the  execution  debtor  held.' 

§  365.  How  mistake  may  be  co77imitted. — There  may  have 
been  a  mutual  mistake  in  relation  to  some  material  fact 
connected  with  the  agreement  forming  the  consideration 
or  inducement ;  or  the  mistake  may  have  been  made  in 
drawing  the  instrument.  In  the  latter  case  it  may  be  a 
mistake  of  law  or  fact,  and  be  committed  by  the  scrivener, 
or  by  one  of  the  parties. 

§  366.  Mistake  as  to  what  is  meant  to  be  sold. — When, 
at  the  time  of  entering  into  a  contract,  both  of  the  parties 
are  mistaken  in  relation  to  the  subject  matter,  the  contract 
will  not  be  enforced  ;  and  it  may  be  rescinded  upon  a  bill, 
filed  for  that  purpose,  by  either  party. ^  This  is  the  situa- 
tion when  there  is  a  mutual  mistake,  unaccompanied  by 
fraud,  and  the  property  which  one  party  intended  to  sell, 
and  the  other  intended  to  buy,  did  not  in  fact  exist ;  or 
where  the  subject  matter  of  the  sale  and  purchase  is  so  ma- 
terially variant  from  what  the  parties  supposed  it  to  be,  that 
the  substantial  object  of  the  sale  and  purchase  has  failed." 

'  Simmons  v.  Worth,  3  Miss.,  67  ;  Young  v.  Coleman,  43  Mo.,  179  ;  Story's 
Eq.  Juris.,  Sec.  165. 

2  Leake  on  Contracts,  172  ;  Daniell  v.  Mitchell,  i  Story,  173  ;  Miles  v.  Stevens, 
3  Pa.  St.,  21  ;  Irick  v.  Fulton,  3  Gratt.,  193  ;  Leger  v.  Bonnaffe,  2  Barb.,  475  ; 
Pitcher  v.  Hennessey,  48  N.  Y.,  415.  If  a  contract  for  the  conveyance  of  real 
estate  is  ambiguous,  or,  for  want  of  skill  on  the  part  of  the  draftsman  or  through 
fraud  or  mistake,  does  not  truly  express  the  agreement  of  the  parties,  or  where 
the  contract  is  one  which,  in  equity  and  good  conscience,  ought  not  to  be  spe- 
cifically enforced,  the  parties  will  be  left  to  such  redress  as  can  be  obtained  in  an 
action  at  law.  Snell  v.  Mitchell,  65  Me.,  48.  See  Youell  v.  Allen,  18  Mich.,  108. 
Where  a  deed  was  executed,  in  pursuance  of  an  agreement  between  the  parties, 
and  it  was  afterward  discovered  that  the  boundaries  therein  described  did  not 
include  a  building  named  in  the  agreement,  but  not  in  the  deed,  and  supposed 
by  both  parties  to  have  been  conveyed,  it  was  held  that  equity  would  not  refonn 
the  deed,  nor  compel  execution  of  a  deed  in  specific  performance  of  the  agree- 
ment. White  V.  Williams,  48  Barb.,  222.  Where  a  contract  in  writing  described 
parcels  of  land  not  intended,  and  neither  party  had  taken  action  under  the  con- 
tract, a  bill  to  correct  the  error,  and  to  enforce  the  contract,  when  corrected,  was 
dismissed.     Cliner  v.  Hovey,  15  Mich.,  18. 

3  Marvin  v.  Bennett,  8  Paige  Ch.,  311.  See  Smyth  v.  McCool,  2  N.  Y.  Weekly 
Dig.,  84.  The  owners  of  real  estate  agreed  to  grant  to  A.  a  lease  of  the  minerals 
under  it  to  the  west  of  a  certain  fault  supposed  to  run  through  the  land  in  the 
direction  of  a  line  drawn  on  a  certain  plan  ;  the  land  being  described  as  supposed 
to  be  eighty-three  acres  or  thereabouts.  They  entered  into  a  similar  agreement 
with  B.  as  to  the  minerals  under  the  land  to  the  east  of  the  fault ;  supposed  to 


490  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.        §   T,66. 

A.  and  B.  respectively  owning  land  in  the  same  patent,  and 
supposing  that  there  was  a  gore  of  land  which  belonged  to 
A.  between  the  two  lots,  A.  agreed  to  convey,  and  B.  to 
purchase,  such  gore.  It  afterward  appearing  that  there  was 
no  such  gore,  it  was  held  that  B.  could  not  maintain  a  suit 
for  specific  performance,  and  compel  A,  to  convey  a  part 
of  his  lot  equal  to  the  supposed  gore,  nor  for  compensa- 
tion in  damages.'  A  suit  was  brought  for  a  conveyance  of 
seven  acres  of  land,  part  of  an  estate  sold  at  auction  and 
purchased  by  the  plaintiff  as  being  contained  in  the  adver- 
tisement of  sale,  and  described  as  being  in  the  possession 
of  one  G.  The  defendant  insisted  that  he  did  not  intend 
to  include  those  seven  acres,  or  know  that  they  were  in  the 
possession  of  G.  The  court  said  :  "  No  doubt,  if  one  party 
thought  he  had  purchased  bona  fide,  and  the  other  party 
thought  he  had  not  sold,  that  is  a  ground  to  set  aside  the 
contract,  that  neither  party  may  be  damaged.  Because  it 
is  impossible  to  say,  one  shall  be  forced  to  give  that  price 
for  part  only  which  he  intended  to  give  for  the  whole,  or 
that  the  other  shall  be  obliged  to  sell  the  whole  for  what 
he  intended  to  be  the  price  of  part  only."^  The  court 
will,  even  in  the  case  of  a  completed  contract,  give  relief 
against  a  common  mistake  without  fraud.  The  defendant 
contracted  to  buy  from  the  plaintiff  freeholds  and  leaseholds 
on  condition  that  he  should  assume  that  A.,  at  his  death 
in  1 84 1,  had  the  fee  of  the  freeholds,  and  should  not  "re- 
quire the  production  of,  or  investigate  or  make  any  objec- 
tion in  respect  of,  the  prior  title."  The  defendant,  having 
accepted  the  title,  contracted  to  sell  the  lands  with  a  farm 

contain  ninety-eight  acres,  or  thereabouts.  It  subsequently  appeared  that  the 
fault  ran  so  as  to  leave  on  the  west  eight  acres  only.  B.  having  filed  a  bill  to 
restrain  A.  from  working  coal  to  the  east  of  the  fault,  it  was  held  that  the  court, 
in  a  suit  by  B.  against  the  owners  for  specific  performance,  would  not  have  de- 
creed a  demise  of  all  the  minerals  to  the  east  of  the  fault,  and  that  he  could  not 
be  deemed  in  constructive  possession,  so  as  to  maintain  his  suit  against  A. 
Davis  v.  Shepherd,  L.  R.  i,  Ch.  410. 

^  Morss  V.  Elmendorf,  11  Paige  Ch.  i-j'i. 

■  Lord  Thurlow  in  Calverley  v.  Williams,  i  Ves.,  210.  And  see  Hitchcock  v. 
Giddings,  4  Price,  135. 


§  2y(^'].  MISTAKE    AS    lO    NATURE    OF    CONTRACT.  49I 

of  his  own  adjoining  the  freeholds  to  a  sub-purchaser,  who 
discovered  that  the  freeholds  were  never  the  property  of 
A.,  but  at  the  date  of  the  contract  were  in  fact  owned  by 
the  defendant,  subject  to  a  leasehold  interest  in  the  plain- 
tiff. The  defendant  refusing  to  complete,  the  plaintiff 
brought  a  suit  for  specific  performance,  alleging  that  she 
had  also  discovered  that  part  of  the  land  she  had  contracted 
to  sell  as  leaseholds,  belonged  to  her  in  fee  simple,  and 
offering  mutual  waiver  or  compensation.  It  was  held  that 
as  there  was  a  common  mistake,  an  inquiry  must  be  directed 
as  to  the  title  to  the  freeholds  at  the  date  of  the  contract/ 
§  367.  Mistake  as  to  nature  of  contract.— ^^'^cx^c  per- 
formance of  a  contract  will  not  be  decreed  when  the  court 
is  satisfied  that  such  contract  was  entered  into  with  an  im- 
perfect understanding  of  its  nature  in  a  matter  materially 
affecting  it.''  Where  a  party  contracted  to  exchange  a 
house  and  lot  for  land  situated  in  another  State,  and  sup- 
posed by  both  parties  to  be  in  a  certain  county  of  that 
State,  whereas  the  land,  in  fact,  lay  in  a  less  valuable  sec- 
tion of  the  State,  a  bill  filed  by  the  owner  of  the  land  for 
specific  performance  of  the  agreement  was  dismissed,  but 
without  costs  ;  the  vice-chancellor  remarking  that  the  de- 
fendant was  justified  in  saying  that  the  instrument  he  signed 
did  not  contain  the  agreement  he   entered  into.^     Where 


'  Jones  V.  Clifford,  L.  R.  3,  Ch.  D.  779. 

2  Pendleton  v.  Dalton,  Phil.  N.  C.  Eq.,  119;  Cuff  v.  Dorland,  50  Barb.,  438. 
But  it  is  otherwise  when,  notwithstanding  the  mistake,  the  contract  can  be  sub- 
stantially carried  out.  Where  the  owner  of  two  lots  agreed  to  sell  them,  both 
he  and  the  purchaser  supposing  that  they  contained  together  one  hundred  and 
eighty-seven  and  a  half  acres,  when,  in  fact,  owing  to  an  error  of  the  surveyor 
in  running  the  boundary  of  one  of  the  lots,  they  fell  short  forty-three  and  a  half 
acres,  it  was  held,  in  a  suit  brought  by  the  assignees  of  the  vendee  for  specific 
performance,  that  the  complainants  were  entitled  to  a  decree  so  far  as  the  de- 
fendant could  make  a  title,  and  that  for  the  deficiency  there  must  be  a  ratable 
deduction  from  the  price.  Voorhees  v.  De  Meyer,  2  Barb.,  27.  Where  a  party 
agreed  to  dig  gravel  for  the  benefit  of  another,  and  there  was  a  mutual  mistake 
as  to  the  land  from  which  it  was  to  be  dug,  and  a  subsequent  written  agreement 
was  entered  into,  by  which  other  land  was  substituted,  and  the  party  agreed  to 
pay  for  the  first  land,  it  was  held  that  such  mistake  was  not  a  ground  for  dis- 
missing a  bill  for  the  specific  performance  of  the  last  agreement.  Old  Colony 
R.R.  Co.  V.  Evans,  6  Gray,  25. 

'  Best  v.  Stow,  2  Sandf.  Ch.,  298. 


492  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  368. 

two  persons  agreed  upon  the  sale  and  purchase  of  a  tract 
of  land,  believing  the  quantity  to  be  less  than  it  really  was, 
and,  by  mistake,  still  less  was  conveyed,  the  court  refused 
to  decree  a  conveyance  of  the  whole,  or  to  compel  a  con- 
veyance of  the  quantity  supposed  to  be  contained  in  the 
tract.'  It  having  been  announced,  at  a  sale  of  real  estate 
under  a  decree,  that  the  land  was  to  be  sold  free  of  incum- 
brances, and  that  all  taxes  and  assessments  were  to  be  paid 
out  of  the  purchase  money,  provided  the  bills  thereof  were 
furnished  to  the  master  before  the  completion  of  the  sale, 
and  it  having  subsequently  appeared  that  a  heavy  assessment 
for  opening  a  street  through  the  property  had  not,  at  the 
time  of  the  sale,  been  confirmed,  though  the  work  had  been 
done  more  than  three  years  before  that  time,  it  was  held 
that  as  the  land  had  been  purchased  under  a  mistake,  the 
vendees  were  entitled  to  a  resale." 

§  368.  Mistake  in  drazving  contract. — If  both  parties 
correctly  understand  the  matters  in  respect  to  which  they 
contract, 'but  commit  an  error  in  reducing  their  agreement 
to  writing,  the  contract  will  be  reformed,  instead  of  being 
rescinded  ;  otherwise  both  would  be  deprived  of  the  benefit 
of  it ;  and  if  it  were  enforced  as  it  stood,  one  party  would 
necessarily  be  injured.'     In  the  exercise  of  this  jurisdiction 

'  Carbury  v.  Tannehill.  i  Har.  &  Johns,  224.  A.  and  B.  contracted  for  the 
exchange  of  lands.  A.  filed  a  bill  for  specific  performance,  and  for  damages  on 
account  of  an  alleged  deficiency  in  the  quantity  contracted  to  be  exchanged  by 
B.  It  appeared  that  there  was  a  mutual  mistake  as  to  the  quantity.  IBut  no 
fraud  was  shown  on  the  part  of  B.,  or  mistake  in  reducing  the  contract  to  writ- 
ing. It  was  held  that  no  indemnity  could  be  decreed  to  A.,  and  that  his  bill 
must  be  dismissed  without  prejudice.     Yancey  v.  Green,  6  Dana,  444. 

*  Post  V.  Leet,  8  Paige  Ch.,  337. 

*Wake  V.  Harrop,  i  H.  &  C,  202;  Ashurst  v.  Mill,  7  Hare,  502;  Druiffv. 
Parker,  L.  R.  5,  Eq.  137;  Barrow  v.  Barrow,  18  Beav.,  529;  Murray  v.  Parker, 
19  lb.,  308;  Malmesbury  V.  Malmesbury,  31  lb.,  407;  Scholfield  v.  Lockwood, 
32  lb.,  436;  Reade  v.  Armstrong,  7  Jr.  Ch.,  375;  Washburn  v.  Merrill,  i  Day, 
139;  McMillin  v.  McMillin,  7  Mon.,  560;  Desell  v.  Casey,  3  Dessaus  Eq.,  84; 
Keyton  v.  Branford,  5  Leigh,  39  ;  Brown  v.  Bonner,  8  lb.,  i  ;  Finley  v.  Lynn, 
6  Cranch,  238 ;  Leonard  v.  Austin,  2  How.  (Miss.),  888 ;  Scott  v.  Duncan,  i 
Dev.  Eq.,  403;  Goodell  v.  Field,  15  Vt.,  448;  Collier  v.  Lanier,  i  Kelly,  238; 
Alexander  v.  Newton,  2  Gratt.,  206;  Larkins  v.  Biddle,  21  Ala.,  252  ;  Stedwell 
V.  Anderson,  21  Conn.,  139;  Manz  v.  Beekman  Iron  Co.,  9  Paige  Ch.,  188; 
Newcomer  v.  Kline,  11  Gill  &  Johns,  457  ;  Gump's  Appeal,  65  Pa.  St.,  476 ; 
Pickett  V.  Merchants'  and  National  Bank,  32  Ark.,  346.    "  It  requires  very  strong 


§  368.  MISTAKE    IN    DRAWING    CONTRACT.  493 

no  distinction  is  made  between  real  and  personal  property.' 
The  aim  of  the  court,  in  giving  relief  for  a  mistake,  is  to 
put  the  parties  as  nearly  as  possible  in  the  situation  they 
would  have  been  in  but  for  the  mistake.  Where  the  con- 
tract has  been  executed  the  court  is  slow  to  rescind  it,  even 
for  causes  w^hich  would  be  thought  to  warrant  its  rescission 
had  it  remained  in  fie7'i.  To  afford  relief  in  the  milder 
form  is  not  to  make  a  new  contract  for  the  parties,  but 
simply  to  refuse  to  set  aside  the  contract  which  they  have 
made  for  themselves  under  a  mistake,  provided  the  party 
profiting  by  the  mistake  will  do  a  more  perfect  equity  by 
correcting  the  same.'  But  the  mistake,  w^hich  a  court  of 
equity  has  jurisdiction  to  correct,  must  be  a  mistake  in  re- 
ducing the  actual  agreement  of  the  parties  to  writing ;  not 
a  mere  error  in  settling  the  terms  of  the  contract  by  which 
a  party  has  failed  to  make  as  good  a  bargain  as  he  ex- 
pected.' The  party  seeking  to  reform  a  written  instru- 
ment must  show  that  a  material  stipulation  was  omitted  or 
inserted  contrary  to  the  intention  of  both  parties."  If  it 
be  clearly  shown  that  the  intention  of  one  of  the  parties  is 
mistaken  and  misrepresented  by  the  written  contract,  that 
cannot  avail,  unless  it  be  further  shown  that  the  other  party 
agreed  to  it  in  the  same  way,  and  that  the  intention  of  both 
of  them  was,  by  mistake,  misrepresented  by  the  wTitten  con- 
tract.'    Where,  without  fraud  or  misrepresentation,  there 

equities  to  induce  a  court  to  refuse  to  enforce  a  written  contract  even  where  a 
mistake  is  alleged  to  have  been  made  in  drawing  it  up."  Campbell,  J.  Rogers 
V.  Odell,  36  Mich.,  411.     See  ante,  %  254. 

^  McKay  v.  Simpson,  6  Ired.  Eq.,  452.  Equity  never  interferes  to  aid  one 
creditor  against  the  other  on  the  ground  of  mistake.     Knight  v.  Bunn,  7  lb.,  T]. 

"  Where  an  agreement  was  entered  into  for  the  transfer  of  shares  in  a  corpora- 
tion upon  the  payment  at  maturity  without  grace  of  a  note  given  for  the  price, 
and,  owing  to  a  mistake  in  the  wording  of  the  agreement  and  note,  payment  was 
not  tendered  until  the  last  day  the  note  would  have  been  due  if  it  had  been 
made  in  the  usual  form,  it  was  held  that  a  bill  might  be  maintained  for  specific 
performance  if  there  were  circumstances  to  excuse  the  mistake  and  to  show  that 
the  defendant  ought  not  to  avail  himself  of  it.     Todd  v.  Taft,  7  Allen,  371. 

'  Kennedy  v.  Umbaugh,  Wright,  327.         *  Nevius  v.  Dunlap,  33  N.  Y.,  676. 

*  Lyman  v.  United  Ins.  Co.,  17  Johns,  373;  Wemple  v.  Stewart,  22  Barb., 
154;  Pennell  v.  Wilson,  2  Abb.  Pr.  N.  S.,  466;  Lanier  v.  Wyman,  5  Robertson, 
147  ;  Cooper  v.  Mu.  Fire  Ins.  Co.,  50  Pa.  St.,  299,     The  allegations  of  a  bill  in 


494  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  369. 

was  a  mutual  mistake  of  the  parties  as  to  the  proper  mode 
of  filling  out  a  policy  of  insurance,  the  application  being 
made  in  the  wrong  name,  and  the  policy  issued  to  the 
wrong  person,  it  was  held  that  the  mistake  would  be  cor- 
rected, although  it  w^as  one  of  law.'  So,  a  mistake  in  a 
policy  of  insurance  may  be  corrected  where  a  material  part 
of  the  description  of  the  premises  furnished  by  the  insured 
to  the  secretary  of  the  insurers  was  omitted." 

§  369.  Where  a  deed  does  not  express  what  was  intended. 
— A  court  of  equity  will  relieve  against  mistakes  in  the 
drawing  of  deeds,  when,  by  accident  or  fraud,  they  are  not 
drawn  in  accordance  with  the  agreement  of  the  parties.' 
Where  the  vendor  sought  the  reformation  of  a  deed  be- 
cause it  conveyed  the  land  sold  together  with  all  its  appur- 

equity,  which  were  a^dmitted  by  demurrer,  were,  that  under  a  contract  made  by 
the  complainant  with  the  intestate  for  the  purchase  of  certain  land,  he  was  en- 
titled to  a  warranty  deed  ;  that  the  administrator  of  the  intestate  undertook  to 
make  such  a  conveyance,  but  by  mistake  neglected  to  insert  a  covenant  of  war- 
ranty, and  represented  to  the  complainant  that  the  deed  was  in  pursuance  of  the 
order  of  the  court ;  and  that  the  complainant  being  uninformed  as  to  the  effect 
of  the  words  employed,  accepted  the  deed,  supposing  that,  if  evicted,  he  would 
have  a  remedy  over  against  the  heirs.  The  complainant  further  alleged  that  he 
had  been  evicted  from  said  land  by  the  paramount  title  of  the  heirs,  and  he 
prayed  an  account  of  what  was  due  him  for  his  purchase  money  and  interest, 
costs,  trouble,  and  expense  in  litigating  the  title.  The  demurrer  having  been 
sustained  and  the  bill  dismissed  in  the  court  below,  the  decree  was  reversed,  on 
the  ground  that  ordinaiy  justice  required  that  the  complainant  should  be  re- 
munerated from  the  property  of  the  intestate,  and  that,  in  this  class  of  cases, 
such  mistakes  were  relievable  in  equity.  Evants  v.  Strode,  1 1  Ohio,  480.  A. 
entered  into  a  contract  with  B.  to  sell  him  certain  land  by  deed  in  fee  simple 
with  covenants  of  warranty.  Afterward  B.  obtained  a  loan  on  the  security  of 
the  land,  and  the  attorney  of  the  lender  to  perfect  the  title  caused  a  quit-claim 
deed  to  be  made  by  A.  to  B.,  which  B.  accepted,  supposing  that  it  conformed  to 
his  agreement  with  A.  It  was  held,  on  a  bill  for  specific  performance  filed  by 
B.  against  A.,  that  as  B.  accepted  the  quit-claim  deed  under  a  mistake,  he  was 
entitled  to  a  decree  compelling  A.  to  execute  a  warranty  deed,  which  could  be 
made  excepting  the  incumbrance,  or  be  ante-dated  so  as  to  take  effect  simul- 
taneously with  the  quit-claim  deed.  Point  Street  Iron  Works  v.  Simmons,  1 1 
R.  I.,  496. 

'  Woodbury  Savings  Bank  v.  Charter  Oak  Ins.  Co.,  31  Conn.,  517. 

'^  Moliere  v.  Pennsylv.  Fire  Ins.  Co.,  5  Ravvle,  342. 

^  Sandford  v.  Washburn,  2  Root,  499.  Where  the  vendor  of  a  slave  having 
procured  a  friend  to  write  the  bill  of  sale,  which,  by  the  agreement  between 
the  seller  and  buyer,  was  not  to  contain  a  covenant  of  warranty  as  to  soundness, 
the  slave  having  previous  to  that  time  been  afflicted  with  fits,  the  following 
clause  was  inserted  in  the  bill  of  sale  :  "  .Said  negro  man  I  warrant  to  be  sound 
at  this  time,"  it  was  held  that  the  vendor  was  entitled  to  relief  in  equity  from 
the  covenant,  and  a  perpetual  injunction  was  granted  against  the  suit  of  the 
vendee  upon  it.     Clopton  v.  Martin,  11  Ala.,  187. 


§  ^JO.  ERROR    AS    TO    PROPERTY    CONVEYED.  495 

tenances,  without  reservation,  when,  by  the  agreement,  the 
vendor  was  to  retain  the  right  to  use  the  water  from  a 
spring,  and  to  convey  it  through  aqueducts  to  several  houses 
owned  by  him  in  the  vicinity,  the  vendee,  though  he  denied 
that  there  was  any  mistake,  was  directed  to  reconvey  to  the 
vendor  the  right  to  the  use  of  the  spring/  A  vendee  and 
his  subsequent  grantees  were  perpetually  enjoined  from 
erecting  any  building  on  ten  feet  front  of  a  lot  in  the  city 
of  Louisville,  so  as  not  to  exclude  light  and  air  from  the 
house  of  the  vendor,  it  having  been  proved  that  when  the 
strip  of  ten  feet  was  sold  it  was  agreed  that  the  front  should 
remain  an  open  space,  which  stipulation  was  left  out  of  the 
deed  by  mistake/  If  a  deed  shows  on  its  face  that  the 
grantees  are  to  hold  the  property  in  trust,  a  court  of  equity 
will  look  to  the  surrounding  circumstances  to  ascertain  the 
true  intention  of  the  parties,  and,  when  discovered,  will 
give  it  the  proper  form.  Where  a  grant  was  to  trustees, 
"  and  their  successors  forever,"  to  them,  "  their  successors 
and  assigns,"  and  to  "  their  heirs,"  it  was  held  that  this, 
when  taken  in  connection  with  the  covenant  for  further  as- 
surance, and  the  further  fact  that  a  good  title  was  to  be 
given,  and  that  a  fee  simple  price  was  paid  for  the  land, 
entitled  the  grantees  to  a  decree  requiring  the  execution  to 
them  of  a  deed  in  fee." 

§  370.   Err 07''  as  to  property  conveyed  or  grantee. — If,  by 

'  Brown  v.  Lampton,  25  Vt.,  258.     See  ante,  §254. 

'^  Athy  V.  McHenry,  6  B.  Mon.,  59.  Where  A.  B.  and  C,  tenants  in  common 
of  land,  entered  into  an  agreement  for  its  partition,  by  which  A.  was  to  have 
allotted  to  him  the  portion  then  in  his  possession,  and,  by  a  mistake  of  the 
commissioners  in  running  the  line,  a  part  of  A.'s  share  was  set  off  to  and 
deeded  to  B.,  it  was  held  that  the  facts  constituted  a  good  equitable  defence  to 
an  action  of  ejectment  brought  by  B.  against  A.  for  such  part  of  A.'s  share. 
Guedici  v.  Boots,  42  Cal.,  452.     And  see  Talbert  v.  Singleton,  lb.,  390. 

^Showman  v.  Miller,  6  Md.,  479.  In  Terrett  v.  Taylor,  9  Cranch,  53,  the 
court  said  :  "  It  would  seem,  therefore,  the  present  deed  did  not  operate  by  way 
of  grant,  to  convey  a  fee  to  the  church-wardens  and  their  successors  ;  for  their 
successors,  as  such,  could  not  take ;  nor  to  the  church-wardens  in  their  natural 
capacity,  for  heirs  is  not  in  the  deed.  But  the  covenant  of  general  warranty  in 
the  deed  binding  the  grantors  and  their  heirs  forever,  and  warranting  the  land 
to  the  church-wardens  and  their  successors  forever,  may  well  operate,  by  way  of 
estoppel,  to  confirm  to  the  church  and  its  privies  the  perpetual  and  beneficial 
estate  in  the  land."     And  see  Mason  v.  Muncaster,  9  Wheat.,  445. 


49^  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  370. 

mistake,  real  estate  has  been  conveyed  which  the  parties 
never  intended  should  be  conveyed,  which  the  grantor  was 
under  no  legal  or  moral  obligation  to  convey,  and  which 
the  grantee  in  good  conscience  has  no  right  to  retain,  a 
court  of  equity  will  interfere  and  correct  the  mistake, 
whether  it  arose  from  a  misapprehension  of  the  facts,  or  of 
the  legal  operation  of  the  deed.  But  if  the  conveyance  is 
such  as  the  parties  intended  it  should  be,  and  the  grantee 
may  in  good  conscience  retain  the  property,  although  the 
grantor  may  have  been  mistaken  as  to  the  extent  of  his 
title,  a  court  of  equity  will  in  general  refuse  to  interfere." 
Where,  in  an  exchange  of  lands  acre  for  acre,  one  of  the 
parties,  through  mistake  or  fraud,  got  more  land  than  he 
was  entitled  to  under  the  contract,  he  was  compelled  to  re- 
convey  the  surplus,  although  the  deed  was  for  "  more  or 
less,"  and  the  other  party,  before  discovering  the  mistake, 
expressed  himself  satisfied  with  the  exchange."  The  mis- 
take may  consist  in  omitting  from  the  deed  a  portion  of  the 
premises  intended  to  be  conveyed.'  If  there  be  a  mutual 
mistake  of  the  parties  to  a  deed  in  the  description  of  the 


'  Stedwell  v.  Anderson,  21  Conn.,  139.  Where  the  plaintiff,  in  selling  and 
conveying  land,  by  mistake  included  in  the  deed  other  land  not  intended  to  be 
sold,  it  was  held  that  he  was  entitled  to  relief  in  equity,  although  the  defendant 
in  his  answer  denied  the  mistake.  Newsom  v.  Bufferlow,  i  Dev.  Eq.,  383.  In 
a  suit  for  the  rescission  of  a  contract  of  sale  of  real  estate  on  the  ground  of  mu- 
tual mistake,  it  appeared  that  the  plaintiff,  being  the  owner  of  a  farm  and  wish- 
ing to  sell  a  portion  of  it,  employed  a  broker  to  make  the  sale  ;  that  the  broker 
caused  the  portion  intended  for  sale  to  be  surveyed  and  divided  into  lots,  with 
figures  inscribed  on  each  lot  as  mapped,  to  show  the  number  of  feet  it  con- 
tained ;  that,  in  accordance  with  a  previous  advertisement,  the  lots  were  offered 
for  sale  at  public  auction,  and  lot  number  one  struck  off  to  the  defendant  at  five 
and  a  quarter  cents  a  foot,  and  a  conveyance  made  to  him  upon  his  paying  the 
price  as  computed  according  to  the  figures  marked  on  the  plan  ;  that  both  par- 
ties supposed  at  the  time  this  computation  correct,  but  that,  several  months 
afterward,  the  plaintiff  discovered  that  the  lot  in  fact  contained  about  twelve 
thousand  more  feet  than  the  number  marked.  It  was  held  that  the  conveyance 
must  be  rescinded,  unless  the  defendant  would  pay  for  the  additional  number  of 
feet  at  the  auction  price,  and  according  to  the  conditions  of  the  sale.  Lawrence 
v.  Staigg,  8  R.  I.,  257. 

^  Shipp  V.  Swann,  2  Bibb.,  82.  It  is  not  a  ground  for  setting  aside  a  sale  of 
personal  property  that  the  price  asked  was  small,  the  vendor  mistakenly  sup- 
posing that  there  was  a  mortgage  lien  on  it,  although  the  purchaser  knew  other- 
wise.    Drake  v.  Collins,  5  How.  Miss.,  253. 

'  Tilton  V.  Tilton,  9  N.  H.,  385. 


§  2,JO.  ERROR  AS  TO  PROPERTY  CONVEYED.         49/ 

land  sold,  a  court  of  equity  will  reform  the  conveyance  on 
a  bill  filed  against  the  executor  and  heirs  of  a  deceased 
vendor/  This  will  be  done  by  a  decree  stating  the  reform 
required,  with  such  an  order  as  may  be  necessary  and  proper 
to  carry  the  decree  into  effect/  The  equitable  right  of  a 
person  to  have  a  conveyance  of  land  intended  to  be  em- 
braced in  a  deed  to  him,  but  left  out  by  mistake,  will  pre- 
vail against  the  legal  lien  of  a  subsequent  judgment  against 
the  grantor/  A  mistake  made  in  a  deed  in  locating  land 
will  be  corrected/  So,  a  deed  which,  by  mistake,  is  made 
out  to  the  wrong  person,  will  be  reformed.  Where  a 
father,  intending  to  convey  land  to  his  married  daughter 
and  the  heirs  of  her  body,  by  mistake  conveyed  it  to  his 
son-in-law  and  his  heirs,  it  was  held,  affirming  the  judgment 
of  the  court  below,  that  the  deed  could  be  reformed  even 
after  the  death  of  both  the  grantor  and  grantee,  upon  clear 
and  satisfactory  evidence  of  the  mistake."  Four  sisters,, 
being  joint  owners  of  certain  land  which  they  and  their 
husbands  wished  to   have  set  off  to  them  in  severalty,  it 


'  Smith  V.  Greeley,  14  N,  H.,  378.     Seeposf,  §  407. 

'  Craig  V.  Kittredge,  23  N.  H.,  231.  Where  the  defence  to  an  action  of  eject- 
ment is,  that  in  consequence  of  a  mistake  in  the  description  of  land  conveyed  to 
the  defendant  by  the  plaintiff,  the  premises  in  question  were  omitted  from  the 
deed,  a  reformation  of  the  deed  is  not  necessary.  The  same  state  of  facts 
which  would  entitle  the  defendant  to  a  reformation  of  the  deed,  would  establish 
his  equitable  right  to  the  possession,  and  would  as  effectually  defeat  the  action 
as  would  the  legal  title.     Hoppough  v.  Struble,  60  N.  Y.,  430. 

3  Gouverneur  v.  Titus,  i  Edw.  Ch.,  477  ;  Affd.  6  Paige  Ch.,  347.  A.,  the  hus- 
band of  B.,  in  April,  1858,  entered  into  a  written  contract  under  seal  for  the 
sale  of  ten  lots  of  land  to  C.  The  purchase  money  was  paid  by  C,  pursuant  to 
the  agreement,  and  possession  taken  by  him  of  the  whole  ten  lots.  In  January, 
i860,  A.  and  B.  gave  C.  a  warranty  deed  which,  for  fifteen  years,  he  supposed 
embraced  the  whole  ten  lots,  when  it  in  fact  only  conveyed  eight  of  them.  At 
that  time,  A.  being  dead,  C.  applied  to  B.  to  give  him  a  deed  of  the  two  lots, 
which  she  refused  to  do.  A  deed  of  the  lots  was  given  to  B.  by  D.,  the  owner 
of  them,  in  November,  1859,  but  not  delivered  until  March,  i860.  The  nego- 
tiation for  the  sale  of  the  lots  to  C.  w^as  conducted  by  A.  in  behalf  of  B.,  who 
received  the  purchase  money.  It  was  held  that  C.  was  entitled  to  a  conveyance 
of  the  two  lots  from  B.,  and  it  was  directed  accordingly.  Hensler  v.  Sefrin,  19 
Hun.,  564.  A  bill  will  lie  for  a  specific  performance,  and  a  proper  deduction, 
where  land  is  sold  under  a  mistake  of  both  parties  as  to  the  boundaries  whereby 
a  house  intended  to  be  conveyed,  was  not  conveyed,  and  the  purchaser  de- 
manded a  deduction  of  the  value  of  the  house  before  paying  the  second  note 
for  the  purchase  money.     Austin  v.  Ewell,  25  Texas,  403. 

*  Raines  v.  Calloway,  27  Texas,  678.     ^  Mattingly  v.  Speak,  4  Bush,  Ky.,  316. 

32 


498     MISREPRESENTATION,  FRAUD,  OR  MISTAKE.    §  37 1. 

was  mutually  agreed  that  there  should  be  a  partition,  and 
that  the  deeds  should  be  drawn  by  one  of  the  husbands. 
By  mistake  and  ignorance  of  law,  he  inserted  the  name  of 
each  husband  in  the  deed  to  his  wife,  although  there  was 
no  intention  that  a  greater  interest  should  be  conveyed  to 
each  husband  than  he  was  entitled  to  by  virtue  of  his  mari- 
tal rights.  One  of  the  sisters  having  died  without  issue, 
upon  a  bill  in  equity  brought  by  her  heirs  at  law  to  have 
the  deed  reformed,  it  appeared  that  neither  the  wife,  nor 
any  of  her  sisters,  had  any  knowledge  of  the  mistake  until 
about  a  year  and  a  half  previous  to  her  decease,  when  the 
fact  was  communicated  to  her  by  her  husband.  It  was 
held  that  there  was  nothing  in  the  lapse  of  time  which 
varied  the  rights  of  the  parties  ;  that  there  must  be  a  de- 
cree in  favor  of  the  plaintiffs,  but  that  the  husband  was  en- 
titled to  be  allowed  for  his  proportional  share  of  improve- 
ments made  by  him  on  the  property.'  A  mistake  in  the 
legal  effect  of  a  description  in  a  deed,  or  in  the  use  of 
technical  language,  may  be  relieved  against  in  equity,  and 
parol  evidence  is  admissible  for  that  purpose.  As  where 
the  parties  intended  that  the  title  should  be  conveyed  to 
the  wife  of  the  party,  who  paid  the  consideration,  for  her 
life,  and  after  her  death  to  her  children,  and  through  igno- 
rance and  mistake  in  drawing  the  deed,  it  was  made  to  the 
wife  and  her  heirs,  the  parties  supposing  that  such  a  deed 
would  have  the  effect  intended.* 

§  371.  Mistake  of  draftsman. — Errors  in  deeds  or  other 
instruments  are  most  commonly  owing  to  the  ignorance  or 
want  of  skill   of  some  third  person  who  is  employed  by 

1  Stechvell  v.  Anderson,  21  Conn.,  139. 

'  Clayton  v.  Fleet,  10  Ohio  St.,  544.  See  Davenport  v.  Sovel,  6  lb.,  459. 
Where  the  parties  to  a  lease  agreed  that  an  annual  rent  should  be  paid  of  three 
hundred  dollars,  payable  in  halt-yearly  instalments,  and  the  lessor,  to  whom  was 
intrusted  the  drawing  of  the  lease,  by  mistake  inserted  the  words  "semi-annual 
rent  of  three  hundred  dollars,"  it  was  held  that  relief  in  equity  would  be  granted 
against  the  assignee  of  the  lease.  Snyder  v.  May,  19  Pa.  St.,  235.  Where  it  is 
agreed  between  the  vendor  and  vendee  that  the  deed  shall  save  the  rights  of  a 
tenant  in  possession,  but,  through  fraud  or  mistake  of  the  vendee  in  drawing 
the  deed,  the  stipulation  is  not  inserted,  the  vendor  is  entitled  to  have  the  mis- 
take corrected.     Young  v.  Miller,  10  Ohio,  85. 


§   T^yi.  MISTAKE    OF    DRAFTSMAN.  499 

the  parties  to  draw  them.  Where  an  instrument  is  drawn 
and  executed  which  professes  or  is  intended  to  carry  out  an 
agreement  previously  entered  into,  but  which,  by  mistake 
of  the  draftsman,  either  as  to  fact  or  law,  does  not  fulfil 
that  intention,  or  violates  it,  equity  will  correct  the  mistake.' 
A  mistake  so  made  in  drawing  a  deed  will  be  corrected 
even  against  the  creditors  of  the  grantor.'  Where  it  was 
the  intention  of  the  parties  that  there  should  be  conveyed 
a  fee  simple  estate,  and,  by  ignorance  or  mistake  on  the 
part  of  the  draftsman,  the  word  "heirs"  was  omitted  from 
the  deed,  it  was  held  that  a  court  of  equity  would  supply 
it.'  A  father,  having  a  daughter  unprovided  for,  and  whose 
husband  was  improvident,  decided  to  vest  some  property 
in  a  trustee  for  her  support,  remainder  to  her  children  ;  and 
he  accordingly  instructed  an  attorney  to  draw  the  deed, 
who  by  mistake  omitted  the  words,  "  to  her  sole  and  sepa- 
rate use,"  or  equivalent  expressions.  It  was  held  that  the 
deed  would  be  reformed  as  against  the  creditors  of  the  hus- 
band, who  were  about  to  subject  the  property  to  their  exe- 
cutions against  him.*  Where,  on  a  sale  of  real  estate,  it 
was  agreed  that  growing  grain  and  certain  logs  on  the 
premises  should  be  reserved  from  the  purchase,  and  the 
scrivener  declined  to  insert  the  reservation  in  the  deed,  be- 
cause he  considered  it  unusual  if  not  improper  to  make 
such  a  reservation  in  a  fee  simple  conveyance,  it  was  held 


■  Wintermute  v.  Snyder,  2  Green  Ch„  489;  Elmore  v.  Austin,  2  Root,  415  ; 
Cook  V.  Preston,  lb.,  78  ;  Chapman  v.  Allen,  Kirby,  399 ;  Wooden  v.  Haviland, 
18  Conn.,  loi  ;  Gower  v.  Sterner,  2  Whart.,  75  ;  Rogers  v.  Atkinson,  i  Kelly, 
12;  Collier  v.  Lanier,  lb.,  238;  Wycke  v.  Greene,  16  Ga.,  49  ;  Cooke  v.  Hus- 
bands, II  Md.,  492  ;  McCann  v.  Letcher,  8  B.  Mon.,  320 ;  McDonald  v.  Starkey, 
42  111.,  442 ;  Chew  v.  Gillespie,  56  Pa.  St.,  308  ;  Murphy  v.  Rooney,  45  Gal.,  78. 
"  It  is  the  well-settled  rule  of  this  State  (Pennsylvania),  that  the  mistake  of  a 
scrivener,  in  preparing  a  deed  or  other  writing,  may  be  shown  by  parol  evi- 
dence, and  the  instrument  reformed  accordingly.  It  is  but  the  exercise  of  the 
equity  powers  in  all  our  courts  from  the  earliest  days  of  the  province."  Shars- 
wood,  J.,  in  Huss  v.  Morris,  63  Pa.  St.,  367.  A  mistake  of  the  auctioneer  in 
entering  in  his  book  of  sales  the  name  of  the  owner  of  land  sold,  will  be  cor- 
rected in  equity,  especially  where  the  party  objecting  must  have  known  who 
owned  the  property.     Pugh  v.  Chesseldine,  11  Ohio,  109. 

^  Alexander  v.  Newton,  2  Gratt.,  266  ;  Perkins  v.  Dickinson,  3  lb.,  335. 

^  Springs  v.  Harven,  3  Jones  Eq.,  96.  *  Stone  v.  Hale,  17  Ala.,  557. 


500  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  372. 

that  the  deed  would  be  reformed,  whether  the  omission  was 
to  be  regarded  as  a  mistake  on  the  part  of  the  scrivener,  or 
an  inadvertence  on  the  part  of  the  vendor.'  A  deed  of 
separation  and  settlement  was  designed  by  both  parties  to 
be  in  full  satisfaction  of  any  claim  on  the  part  of  the  wife 
either  of  dower  or  distribution  out  of  her  husband's  estate. 
This  intention  not  being  expressed  by  reason  of  the  mis- 
take of  the  conveyancer  who  drew  the  instrument,  it  was 
held  that  a  court  of  equity  would  supply  the  omission." 
Where,  when  the  vendor  contracted  for  the  sale  of  his 
land,  it  was  agreed  that  a  lien  should  be  reserved  for  the 
unpaid  purchase  money,  and  both  of  the  parties  instructed 
the  draftsman  to  so  draw  the  deed  as  to  secure  this  lien, 
which,  through  ignorance  and  mistake  as  to  the  require- 
ments of  the  statute,  he  failed  to  do,  it  was  held,  reversing 
the  judgment  of  the  court  below,  that  the  deed  should  be 
reformed  so  as  to  allow  the  lien."  If  the  parties  have  been 
misled  by  misplaced  confidence  in  the  skill  of  the  scrivener, 
and  there  is  a  mistake  in  the  legal  effect  of  a  description  in 
a  deed,  or  in  the  use  of  technical  language,  it  is  no  answer 
to  a  bill  in  equity  to  have  the  deed  reformed  that  the  scriv- 
ener used  the  words  he  intended  to  use.'  But  where  the 
scrivener  testifies  that  he  drew  the  instrument  according  to 
his  instructions,  and  that  it  was  read  to,  and  approved  by, 
the  parties,  he  will  not  be  allowed  to  show  that,  owing  to 
his  want  of  skill,  the  intention  of  the  parties  was  not  cor- 
rectly expressed." 

§372.  Correction  of  error  hi  mortgage. — Where  a 
mortgage  of  real  estate,  by  mistake,  does  not  embrace  a 
portion  of  the  land  agreed  to  be  mortgaged,  a  court  of 
equity,  on  a  bill  filed  by  the  mortgagee,  will  reform  the 
mortgage  so  as  to  correct  the  error,  even  as  against  the 
creditors  of  the  mortgagor,  and  subsequent  purchasers  of 

'  Henclrickson  v.  Ivins,  Saxton,  562.         "^  Parham  v.  Parham,  6  Humph.,  287. 
'  Worley  v.  Tuggle,  4  Bush  Ky.,  168.  ^  Canedy  v.  Marcy,  13  Gray,  373. 

^  Dupree  v.  M'Donald,  4  Dessaus  Eq.,  209. 


§  2i'J2.  CORRECTION    OF    ERROR    IN    MORTGAGE.  5OI 

the  land  omitted,  with  notice.  And  if  the  mortgagee,  after 
a  decree  of  foreclosure,  and  before  the  mistake  is  discov- 
ered, sells  and  conveys  the  land  to  a  third  person  for  a 
valuable  consideration,  both  he  and  the  mortgagor,  suppos- 
ing that  the  whole  of  it  was  included  in  the  mortgage,  the 
mortgagor  will  be  entitled  to  have  the  decree  opened,  with 
further  time  to  redeem,  unless  he  advised  such  third  person 
to  purchase,  and  consented  that  he  might  do  so/  A. 
mortpfasfed  certain  real  estate  to  B.,  to  secure  B.  as  indorser 
of  A.'s  note.  A  tract  of  land,  intended  by  the  parties  to 
be  included  in  the  mortgage,  was  omitted  by  mistake.  Sub- 
sequently to  the  giving  of  the  mortgage,  creditors  of  A. 
obtained  judgments  against  him,  and  there  was  reason  to 
suppose  that  executions  on  the  judgments  would  be  levied 
on  the  land  which,  by  mistake,  had  been  left  out  of  the 
mortgage.  B.  had  paid  the  note,  which  was  for  a  larger  sum 
than  the  land  mortgaged  and  the  tract  omitted  were  worth  ; 
and  A.  was  insolvent.  Upon  a  bill  filed  by  B.,  it  was  held 
that  he  was  entitled  to  a  decree  correcting  the  mistake,  and 
freeing  the  tract  omitted  from  the  mortgage  from  the  lien  ' 
of  the  judgments.'  So,  it  was  held,  in  a  suit  by  the  mort- 
gagee, that  the  mortgage  should  be  reformed  and  specifically 
enforced,  against  the  general  creditors  of  the  mortgagor, 
where  the  mortgage,  by  mistake,  was  made  to  secure  one 
dollar  instead  of  one  hundred  dollars.'     And,  upon   a  bill 

'  Blodgett  V.  Hobart,  18  Vt.,  414.  Where,  after  the  foreclosure  of  a  mortgage, 
the  mortgage  is  reformed  so  as  to  embrace  land  which,  by  mistake,  was  omitted 
from  it,  the  right  of  the  mortgagor  to  redeem  is  thereby  revived.  Provost  v. 
Rebman,  21  Iowa,  419. 

2  White  V.  Wilson,  6  Blackf.,  448. 

*  Huffman  v.  Fry,  5  Jones  Eq.,  415.  Where,  on  a  sale  of  land,  it  was  agreed 
that  the  vendee  should  give  his  bond  and  mortgage  to  secure  the  payment  of 
three  thousand  dollars,  and  interest,  and,  by  mistake,  the  bond  and  mortgage 
only  provided  for  the  payment  of  three  hundred  dollars  annually,  with  interest 
on  the  same,  so  that  the  vendor  was  not  entitled  to  interest  annually  on  the 
whole  amount  remaining  unpaid,  it  was  held  that  the  vendor  was  entitled  to 
have  the  bond  and  mortgage  reformed,  a  majority  of  the  court  thinking  that 
there  must  have  been  fraud  on  the  part  of  the  vendee,  or  a  mutual  mistake  of 
fact.  Rider  v.  Powell,  28  N.  Y.,  310.  Wright,  J.,  dissented,  on  the  ground  that 
the  judge  who  tried  the  cause  found  that  the  mistake  was  only  on  the  part  of  the 
plaintiff.  He  said  :  "  I  suppose  the  rule  to  be,  that  when  there  is  a  mistake  on 
one  side,  and  not  a  mutual  mistake,  it  may  be  a  ground  for  rescinding  a  con- 


502  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §   T^J 2)- 

filed  by  the  vendee  against  the  heirs  of  the  vendor,  it  was 
held  that  he  was  entitled  to  have  a  bond  reformed  so  as  to 
include  lands  left  out  by  mistake  in  the  description  of  sev- 
eral tracts,  and  to  specific  performance  of  the  reformed 
bond.'  Where  real  estate  is  sold  under  a  decree  of  fore- 
closure, and  conveyed  to  the  purchaser,  it  being  understood, 
not  only  by  him,  but  by  the  bidders  and  persons  generally 
at  the  sale,  that  the  mortgage  embraces  all  of  the  land,  and 
the  price  for  which  it  is  struck  off  is  what  the  whole  would 
have  brought,  and  it  is  subsequently  ascertained  that,  from 
a  mistake  in  the  description,  the  mortgage  does  not  include 
the  whole  premises  designed  to  be  mortgaged,  in  conse- 
quence of  which  the  legal  title  fails,  the  devisee  of  the 
mortgagor  will  be  perpetually  enjoined  from  proceeding  at 
law,  and  be  decreed  to  release  his  right  and  title  in  the 
property  to  the  purchaser.'' 

§  37 2>'  Inte7itional  omission  of  term. — If  a  term  of  the 
actual  agreement  be  intentionally  left  out  of  the  writing  by 
the  parties,  the  court  will  not  reform  the  contract  in  this 
respect ;  a  thing  done  on  purpose,  not   being  a  mistake.' 

tract,  or  for  refusing  to  enforce  its  specific  performance,  but  not  a  ground  for 
altering  its  terms.  A  mistake  by  the  plaintiff  alone,  when  he  made  the  contract, 
as  to  the  interest  he  was  to  receive  on  the  bond  and  mortgage,  would  not  en- 
title him  to  have  the  contract  so  modified  as  to  conform  to  his  mistaken  impres- 
sion, though  it  might  be  a  reason  for  rescinding  the  contract,  on  the  ground  that 
the  minds  of  the  parties  never  met  in  making  it."  See  Adam's  Equity,  171; 
Lyman  v.  United  Ins.  Co.,  17  Johns,  375.  The  New  York  court  of  appeals, 
reversing  the  judgment  of  the  supreme  court,  directed  the  reformation  of  a 
mortgage  of  real  estate,  given  for  a  loan  of  twelve  thousand  dollars,  and  enforced 
a  lien,  because  valuable  erections,  which,  previous  to  the  execution  of  the  mort- 
gage had  been  appraised  at  six  thousand  five  hundred  dollars,  were  on  the  ad- 
joining land  to  that  actually  described  in  the  deed,  the  mortgagee  supposing, 
and  being  led  by  the  mortgagor  to  believe,  that  they  were  included  in  the  mort- 
gage. The  court  said :  "  It  is  unnecessary  to  refer  to  cases  to  establish  the 
familiar  doctrine  that  where,  through  mistake  or  fraud,  a  contract  or  conveyance 
fails  to  express  the  actual  agreement  of  the  parties,  it  will  be  reformed  by  a  court 
of  equity  so  as  to  correspond  with  such  actual  agreement."  De  Peyster  v.  Has- 
brouck,  I  Kernan,  582. 

'  Hunter  v.  Bilyou,  30  III.,  246. 

-  Weldron  v.  Letson,  15  N.  J.  Eq  ,  126.  Where  the  intention  was  to  mort- 
gage land  situated  in  township  six,  and,  by  mistake  in  drawing  the  mortgage, 
the  land  was  described  as  being  in  township  seven,  it  was  held  that  the  mistake 
would  be  considered  as  corrected,  and  the  mortgage  be  treated  as  of  land  in 
township  six.     Willis  v.  Henderson,  4  Scam.,  13. 

'  Lord  Portmore  v.  Morris,  2  Bro.  C.  C,  219 ;  Hare  v.  Shearwood,  3  lb.,  168  ; 
S.  C,  I  Yes.  Jr.,  241. 


§  374-  VERBAL    CHANGE    OF    CONTRACT.  503 

Thus,  where  in  a  contract  for  an  annuity,  which  the  parties 
designed  to  be  redeemable,  it  was  agreed  that  the  deed  should 
not  contain  a  clause  of  redemption,  it  being  erroneously 
supposed  that  its  insertion  would  make  the  contract  usuri- 
ous, it  was  held  that  a  court  of  equity  could  not  supply  the 
omission  ;  since  the  parties  desired  the  court,  not  to  do 
what  they  intended,  but  to  put  them  in  the  situation  they 
would  have  occupied  if  they  had  been  better  informed,  and 
had  entertained  a  contrary  intention."  So,  where  a  power 
of  subsequent  revocation  is  left  out  of  a  voluntary  deed,  the 
grantor  erroneously  supposing  that  he  will,  notwithstanding, 
have  such  a  power,  the  deed  cannot  afterward  be  rectified 
by  inserting  the  power.^ 

§  374.  Verbal  change  of  coniract. — A  subsequent  parol 
agreement  varying  the  terms  of  the  written  contract  cannot 
be  proved  on  the  ground  of  mistake,  unless  the  refusal  to 
perform  it  might  amount  to  fraud.'  Accordingly,  where 
A.  entered  into  a  written  contract  with  B.,  who  was  the 
mere  agent  of  C,  for  a  lease,  to  commence  on  the  21st  of 
April,  and  afterward  A.  and  C.  agreed  by  parol  that  the 
lease  should  commence  on  the  24th  of  June,  instead  of  the 

1  Irnham  v.  Child,  i  Bro.  C.  C,  92  ;  Marquis  Townshend  v.  Stangroom,  6  Ves., 
332,  per  Lord  Eldon.  And  see  Pitcairn  v.  Ogbourne,  2  Ves.  Sen.,  375  ;  Cripps  v. 
Jee,  4  Bro.  C.  C,  472. 

^  Worrall  v.  Jacob,  3  Men,  270. 

'  Price  V.  Dyer,  17  Ves.,  356.  It  is  the  peculiar  province  of  a  court  of  equity 
to  guard  on  one  hand  against  fraud  and  mistake,  and  to  avoid  on  the  other  the 
admission  of  parol  evidence  to  contradict  or  vary  a  written  contract.  Although 
a  court  of  equity  will  reliev^e  against  a  writing  which  has  been  drawn  materially 
and  clearly  different  from  the  contract  of  the  parties,  and  by  mistake  executed, 
yet  if  the  party  bound  is  fully  apprised,  in  point  of  fact,  of  the  manner  in  which 
the  instrument  is  expressed,  and  he  executes  it,  or  the  other  party  receives  it,  as 
containing  the  contract,  parol  evidence  varying  its  legal  import,  without  the  im- 
putation of  fraud,  if  it  can  be  received  in  any  case,  will  be  admitted  with  great 
caution.  Coger  v.  M'Gee,  2  Bibb.,  321.  A  bill  for  relief  against  a  mistake  in  a 
deed  cannot  be  supported  on  the  ground  of  a  parol  promise  of  the  defendant  at 
the  time  of  executing  the  conveyance.  "  The  written  executed  contract  must  be 
regarded  as  declaring  the  whole  contract  then  made,  and  such  promises,  if  re- 
ceivable at  all,  are  admitted  merely  as  evidence  tending  to  show  the  equity 
dehors  the  conveyance,  arising  from  the  misapprehension  of  the  parties.  It  is 
exceedingly  clear  tiiat  such  evidence  is  to  be  regarded  with  extreme  caution. 
For  otherwise  the  courts  would  violate  in  effect  the  rule  which  they  profess  to 
hold  sacred,  that  the  operation  of  a  deed,  or  other  written  instrument,  shall  not 
be  abridged,  enlarged,  or  altered  by  parol  testimony."  Chamness  v.  Grutchfield, 
2  Ired.  Eq  ,  148,  per  Gaston,  J.    And  see  Blanchard  v.  Moore,  4  J.  J.  Marsh,  471. 


504  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §7,"/ 

2 1  St  of  April,  and  be  made  to  C.  instead  of  to  B.,  and  a 
suit  was  brought  by  C.  and  B.  for  the  specific  performance 
of  the  written  contract  as  varied  by  the  subsequent  parol 
agreement,  a  plea  of  the  statute  of  frauds  was  sustained.' 
So,  where  there  was  a  written  contract,  and  the  defendant 
set  up  a  subsequent  parol  agreement  mutually  abandoning 
the  terms  of  the  written  contract,  and  containing  new 
terms  modifying  and  adding  to  the  terms  of  the  writing,  it 
was  held  that  the  second  agreement  did  not  amount  to  a 
waiver  of  the  first,  and  that,  as  the  subsequent  terms  had 
not  been  acted  on,  the  second  agreement  formed  no  de- 
fence to  the  first,  which  must  be  performed.'  But  although 
when  the  defendant  entered  into  the  written  contract  he 
fully  understood  its  terms  and  consequences,  yet  if  the 
plaintiff  promised  to  vary  the  terms  of  it,  which  he  refuses 
to  do,  it  will  sometimes  be  a  defence  to  a  suit  for  specific 
performance  : '  as  a  promise  by  the  vendor's  agent  that  im- 
provements shall  be  made  on  the  adjoining  property  ;'  or  to 
allow  for  a  deficiency  in  quantity  ; '  or  a  promise  by  the  pur- 
chaser that  the  vendor  shall  have  a  lease  of  the  property 
sold.'  And  where  parties,  after  entering  into  a  contract 
for  the  sale  of  land,  verbally  agree  to  substitute  a  new  con- 
tract, differing  from  the  first  agreement  as  to  the  time  of 
payment  and  delivery  of  the  deed,  and  the  defendant  in  his 
answer  admits  the  second  or  substituted  contract,  the  com- 
plainant will  be  entitled  to  a  decree  for  the  specific  per- 
formance of  that  contract,  if  he  chooses  to  perform  it  on 
his  part,  and  can  have  such  relief  in  the  then  suit' 

§  375.   IV/iere  enforceme7it  of  diffe7^ent  contract  would  be 
7infair. — Specific    performance    of    an    agreement   with   a 

'  Jordan  v.  Sawkins,  3  Bro.  C.  C,  388 ;  S.  C,  i  Ves.,  Jr.,  402. 

^  Price  V.  Dyer,  supra. 

^  Clarke  v.  Grant,  14  Ves.,  519  ;  Micklethwaite  v.  Nightingale,  12  Jur.,  638. 

*  Myers  v.  Watson,  i  Sim.  N.  S.,  523. 

^  Winch  V.  Winchester,  i  Ves.  &  Bea.,  375. 

'  Vouillon  V.  States,  25  L.  J.  Ch.,  875. 

'  Ryno  V.  Darby,  20  N.  J.  Eq.,  231  ;  Wallace  v.  Brown,  2  Stockt.,  308.  But 
see  Buck  v.  Dowley,  16  Gray,  555  ;  Chambers  v.  Chalmers,  4  Gill  &  Johns,  .-138 ; 
Allen  V.  Burke,  2  Md.  Ch.,  534;  Craige  v.  Craige,  6  Ired.  Eq.,  191. 


§  2)j6.  PLAINTIFF    COMPELLED    TO    ELECT.  505 

parol  variation  will  not  be  granted  when  it  would  be  unfair 
to  either  party.  Thus,  where  the  plaintiff  sought  the  en- 
forcement of  an  agreement  which  the  defendant  success- 
fully resisted  by  parol  evidence  of  a  subsequent  contract, 
and  the  plaintiff  insisted  on  the  performance  of  the  agree- 
ment so  set  up,  the  court  refused  to  grant  it,  for  the  reason 
that  it  would  be  a  surprise  on  the  defendant  to  decree, 
under  the  prayer  for  general  relief,  the  performance  of  an 
agreement  which  was  not  put  in  issue  by  the  record.'  So, 
where  a  very  long  time  had  elapsed,  and  compensation  in 
respect  to  the  parol  variation  must  have  been  allowed,  if 
the  contract  had  been  enforced  for  the  period  whilst  the 
doubt  about  the  terms  of  the  contract  had  been  subsisting, 
the  bill  was  dismissed,  but  without  costs.^ 

§  376.  Plaintiff  compelled  to  elect. — When,  in  case  of 
parol  variation,  it  is  shown  to  the  court  that  the  defendant 
contracted  under  a  mistake,  the  plaintiff  may  elect  either  to 
have  his  bill  dismissed,  or  to  perform  the  agreement  with 
the  parol  variation.'  This  was  held  where  the  conditions 
of  sale  were  such  as  were  likely  to  have  misled  the  defend- 
ant, and  the  defendant  contended  for  a  different  construc- 
tion from  that  of  the  plaintiff.*  So,  where  in  a  suit  by  the 
purchaser  it  appeared  that  the  written  contract  confined  a 
reference  of  expenses  to  those  of  conveyance,  and  the  de- 
fendant proved  that  it  was  the  intention  of  both  parties 
that  the  plaintiff  should  also  pay  for  making  out  the  de- 
fendant's title,  the  plaintiff  was  put  to  his  election  either 
to  have  his  bill  dismissed,  or  to  perform  the  agreement  as 

1  Legal  V.  Miller,  2  Ves.  Sen.,  299.  See  statement  of  this  case  in  Price  v. 
Dyer,  17  Ves.,  364. 

"^  Garrard  v.  Grinling,  ?  Swanst.,  244. 

3  Clarke  v.  Grant,  14  Ves.,  519. 

*  Higginson  v.  Clowes,  15  Ves.,  516.  In  this  case,  "counsel  for  the  defend- 
ant contended  that  it  was  not  competent  for  the  plaintiff  to  have  his  bill  dis- 
missed, but  that  the  defendant,  without  filing  a  cross  bill,  might  have  specific 
performance  of  the  agreement.  Sir  WilHam  Grant,  however,  held  that  that  right 
existed  where  the  defendant's  construction  was  adopted  by  the  court.  But  that 
where,  as  in  the  case  before  him,  the  court  did  not  decide  that  the  defendant's 
construction  was  right,  but  only  that  he  had  contracted  under  a  mistake  created 
by  the  plaintiff,  the  bill  was  dismissed."     Fry  on  Specific  Perform.,  218. 


506      MISREPRESENTATION,   FRAUD,   OR  MISTAKE.      §§377,  378. 

contended  for  the  defendant."  Where  the  defendants  in- 
troduced parol  evidence  to  show  that  an  agreement  by  sev- 
eral persons  to  give  bonds  in  fifteen  hundred  pounds  ought 
to  have  been  for  one  joint  bond  by  all  in  that  amount,  the 
plaintiff  was  compelled  to  elect  to  have  his  bill  dismissed, 
or  to  take  a  decree  for  the  joint  bond,  or  to  take  an  issue 
on  which  the  witnesses  could  be  examined."  In  a  suit  by 
a  landlord  for  the  specific  performance  of  a  contract  for  a 
lease,  the  defendant  set  up  a  parol  agreement  to  abate  the 
rent,  to  which  the  plaintiff  submitted,  and  the  lease  was  di- 
rected with  the  abatement.'  And  where  it  was  proved  that 
besides  the  written  contract  there  was  a  verbal  arrangement 
between  the  agent  of  the  plaintiff  and  the  defendant  as  to 
payment  for  timber  and  certain  expenses,  to  which  the 
plaintiff  consented,  specific  performance  was  decreed." 

^377-  Omission  of  usual  clause. — When  a  term  is 
omitted  w^hich  one  of  the  parties  to  the  contract  had  just 
reason  to  suppose,  and  did  suppose,  would  be  inserted — as, 
for  instance,  a  customary  clause  in  a  lease — the  agreement 
will  not  be  enforced  against  him,  unless  such  condition  is 
included."  So,  where  specific  performance  was  sought  of 
a  covenant  for  renewal  which  had  been  acted  on  in  a  dif- 
ferent manner  from  its  terms  for  a  great  number  of  years, 
it  was  held  that  the  covenant  could  not  be  enforced  accord- 
ing to  its  original  terms,  but  only  on  the  plaintiff's  submit- 
ting to  a  conscientious  modification  of  it  to  conform  to  the 
circumstances  of  the  case." 

§  378.  Mistaken  understanding  of  contract. — A  person 
will  not  be  permitted  to  evade  his  written  agreement  on 


^  Ramsbottom  v.  Gosden,  i  V.  &  B.,  165.  With  reference  to  this  case,  Mr. 
Fry  (Specif.  Perform.,  218,  note),  very  properly  suggests  the  query,  why  specific 
performance  was  not  enforced  on  the  defendant's  contention,  as  it  appeared  that 
the  mistake  was  committed  in  reducing  the  agreement  to  writing. 

*  Lord  Gordon  v.  Marquis  of  Hertford,  2  Mad.,  106. 
2  Clarke  v.  Moore,  i  Jon.  &  L.,  723. 

*  London  &  Birmingham  R.R.  Co.  v.  Winter,  Cr.  &  Ph.,  57. 

*  Ricketts  v.  Bell,  i  De  G.  &  Sm.,  335.      "  Davis  v.  Hone,  2  Sch.  &  Lef.,  341. 


§  379-       RIGHT    OF    PLAINTIFF    TO    ENFORCE    CONTRACT.        507 

slight  parol  evidence  of  mistake/  But  where  the  defend- 
ant referred  in  a  letter  to  an  offer  as  having  been  previously 
made  to  another  party,  and  such  party  testified  that,  in  the 
offer  as  made  to  him,  the  term  omitted  in  the  subsequent 
offer  was  contained,  it  was  held  that  mistake  on  the  part  of 
the  defendant  was  sufficiently  proved,  and  the  defence  was 
allowed.'  "Where  such  evidence  is  given,  great  attention 
wnll  be  paid  to  what  is  stated  by  the  other  party  to  the  in- 
strument."' 

§  379.  Right  of  plaintiff  to  enforce  contract  varied  by 
parol. — The  parol  variation  may  be  alleged  by  the  plaintiff 
in  order  to  afford  the  defendant  an  opportunity  to  elect ; ' 
or  it  may  be  set  up  by  the  defendant.  If  it  be  not  alleged, 
but  comes  out  in  the  evidence,  or  if  it  be  alleged  by  the 
defendant,  and  be  partially,  but  not  fully,  established  to  the 
satisfaction  of  the  court,  the  court  will  direct  an  inquiry 
relative  to  it  before  disposing  of  the  case.'  Whether  the 
plaintiff  is  entitled  to  introduce  parol  evidence  to  correct 
a  mistake  in  a  written  contract  specific  performance  of 
which  is  sought  by  his  bill,  has  been  questioned.'  Such 
evidence  has,  however,  frequently  been  admitted.'  The 
case  of  an  additional  consideration,  which  may  be  proved 

'  Andrews  v.  Essex  Ins.  Co.,  3  Mason,  6 ;  Harrington  v.  Harrington,  2  How. 
Miss.,  721  ;  Hall  v.  Claggett,  2  Md.  Ch.,  51  ;  Philpott  v.  Elliott,  4  lb.,  273; 
Perry  v.  Pearson,  i  Humph.,  431  ;  Bailey  v.  Bailey,  8  lb.,  230  ;  Adams  v. 
Robertson,  37  III,  45.  Where  a  deed  of  real  estate  has  remained  undisputed 
for  a  number  of  years,  an  alleged  misdescription  in  it,  will  not  be  corrected 
upon  the  testimony  of  witnesses  as  to  conversations  between  the  parties.  Du- 
rant  v.  Bacot,  15  N.  J.  Eq.,  411. 

'  Wood  V.  Scarth,  2  K.  &  J.,  33. 

^  Kerr  on  Fraud  and  Mistake,  416.  ■*  Robinson  v.  Page,  3  Russ,  114. 

"  ^  Parken  v.  Whitby,  T.  &  R.,  366  ;  London  &  Birmingham  R.R.  Co.  v.  Win- 
ter, Cr.  &  Ph.,  57  ;  Helsham  v.  Langley,  1  Y.  &  C.  C.  C,  175  ;  Van  v.  Corpe, 
3  My.  &  K.,  269 ;  Chambers  v.  Livermore,  1 5  Mich.,  289 ;  Berry  v.  Whitney,  40 
ib.,  65. 

^  Woolam  V.  Hearn,  7  Ves.,  211  ;  Higginson  v.  Clowes,  15  lb.,  516;  Clinan 
V.  Cooke,  I  Sch.  &  Lef.,  39. 

'  Henkie  v.  Royal  Exch.  Ass.  Co.,  i  Ves.  Sen.,  317  ;  Watts  v.  Bullas,  i  P.  Wms.,- 
60;  Simpson  v.  Vaughan,  2  Atk.,  31  ;  Crosby  v.  Middleton,  Prec.  in  Ch.,  309  ; 
Burn  V.  Burn,  3  Ves.,  573;  South  Sea  Co.  v.  D'Oliffe,  cited  i  Ves.,  317  ;  5  lb., 
601  ;  Randal  v.  Randal,  2  P.  Wms.,  464;  Cocking  v.  Pratt,  i  Ves.  Sen.,  400; 
Rogers  v.  Earl,  Dick.,  294  ;  Barstow  v.  Kilvington,  5  Ves.,  593 ;  Gillespie  v. 
Moon,  2  Johns  Ch.,  585. 


508  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         ^   379. 

by  parol  when  not  inconsistent  with  the  written  instrument, 
is  an  instance  in  which  a  plaintiff  may  obtain  specific  per- 
formance of  a  contract  with  a  parol  variation.  Thus, 
where  there  was  an  assignment  of  a  farming  lease  and 
stock,  and  it  was  proved  by  parol  that  over  and  above  the 
consideration  stated  in  the  deed,  there  was  an  agreement  to 
pay  the  assignor  forty  pounds  a  year  for  his  life,  and  to 
furnish  him  a  house  during  the  same  time,  and  the  assign- 
ment was  carried  into  effect,  specific  performance  of  the 
parol  agreement  was  granted  at  the  suit  of  the  annuitant' 
In  a  suit  for  the  specific  performance  of  a  contract  for  a 
lease,  with  the  addition  of  a  parol  agreement  to  pay  the 
defendant  therefor  two  hundred  pounds,  the  vice-chancel- 
lor held  that  the  relief  prayed  for  could  not  be  granted,  for 
the  reason  that  the  plaintiff  himself  showed  that  a  material 
term  had  been  left  out  of  the  contract.  But  the  appellate 
court,  in  overruling  this  decision,  held  that  a  written  con- 
tract in  the  absence  of  fraud  and  mistake,  binds  at  law  and 
in  equity  according  to  its  terms,  although  there  is  an  addi- 
tional verbal  agreement,  subject  to  the  right  of  the  de- 
fendant to  call  on  the  court  to  be  neutral,  unless  the 
plaintiff  consents  to  the  omitted  term.'     When,  in  reduc- 

'  Clifford  V.  Turrell,  I  Y.  &  C.  C.  C,  138.  And  see  Rex  v.  Scammonden,  3 
Term  R.,  474. 

^  Martin  v.  Pycroft,  2  De  G.  M.  &  G.,  785.  And  see  Robinson  v.  Page,  su- 
pra. There  is  a  dictinn  of  Lord  Hardwicke  in  Joynes  v.  Statham,  3  Atk.,  388, 
expressing  the  opinion  that  evidence  of  the  omission,  in  an  agreement  for  a 
lease,  of  the  words  "clear  of  taxes,"  might  have  been  given  by  the  defendant, 
if  he  had  as  plaintiff  sought  a  specific  performance,  considering  it  in  the  light 
of  an  explanation  of  an  executory  agreement,  and  not  of  a  variation.  See 
Walker  v.  Walker,  2  Atk.,  98,  and  observations  of  Lord  Redesdale,  on  both  of 
these  cases,  in  Clinan  v.  Cooke,  i  Sch.  &  Lef.,  38,  39.  Pember  v.  Mathers,  i 
Bro.  C.  C,  52,  which  was  a  suit  brought  by  lessees  against  their  assignee  for 
the  specific  performance  of  a  parol  agreement  to  indemnify  the  plaintiffs  against 
all  rents  and  covenants  in  the  lease,  and  to  execute  a  bond  to  secure  such  in- 
demnity, though  it  was  decided  on  the  ground  of  fraud,  came  very  near  to  hold- 
ing the  admissibility  of  parol  evidence  by  the  plaintiff  to  supply  an  omission  in 
a  written  contract.  The  property  was  sold  at  auction,  and  the  conditions  of 
sale  did  not  stipulate  for  the  indemnity.  The  court,  after  an  issue  to  ascertain 
the  facts,  granted  specific  performance,  holding  that  where  an  objection  is  taken 
before  the  party  executes  the  agreement,  and  the  other  side  promise  to  rectify  it, 
it  is  to  be  regarded  a  fraud  on  the  party  if  such  promise  is  not  kept.  Per  Lord 
Thurlow.  See  remarks  of  Sir  William  Grant,  in  Clarke  v.  Grant,  14  Yes.,  524  ; 
Harrison  v.  Gardner,  2  Mad.,  198.     In   Marquis  Townshend  v.  Stangroom,  6 


§  379-       RIGHT    OF    PLAINTIFF    TO    ENFORCE    CONTRACT.        5O9 

ing  a  contract  to  writing,  a  mistake  is  committed  by  both 
parties,  there  is  no  good  reason  why  the  plaintiff  should  not 
have  the  contract  corrected  and  enforced  ;  or,  in  other  words, 
why  the  jurisdiction  for  the  reform  of  contracts  and  for  the 
execution  of  them,  may  not  be  exercised  in  one  and  the  same 
suit ;  since  this  would  be  the  result,  if  the  plaintiff  were  to 
sue  for  the  specific  performance  of  a  written  agreement,  and 
then  submit  to  a  parol  variation  set  up  and  proved  by  the 
defendant ;  or  if  the  plaintiff  should  file  two  bills,  one  for 
reform  and  the  other  for  specific  performance.  But  the 
weight  of  English  authority  is  against  the  right  of  a  party 
to  maintain  a  suit  for  the  specific  performance  of  a  contract 
with  a  parol  variation."  In  a  suit  for  the  specific  perform- 
ance of  a  contract  for  a  lease  with  the  addition  of  the 
words,  "clear  of  all  taxes,"  which  it  was  proved  was  the 
meaning  of  the  parties,  it  was  held  that  the  parol  variation 
was  inadmissible,  and  that  only  the  written  agreement 
should  be  enforced,  which  the  plaintiff  declining,  the  bill 
was  dismissed.  Lord  Rosslyn  said  :  "  I  cannot  find  that 
this  court  has  ever  taken  upon  itself,  in  executing  a  written 
agreement  by  a  specific  performance,  to  add  to  it  by  any 
circumstance  that  parol  evidence  could  introduce."'     So, 

Ves.,  328,  which  was  a  suit  for  specific  performance  with  a  parol  variation,  and 
in  which  the  defendant  by  a  cross  bill  sought  the  performance  of  the  agreement 
as  it  stood,  Lord  Eldon  used  language  which  seemed  to  carry  the  idea  that  if 
the  evidence  had  been  different,  the  agreement  might  have  been  rectified  and 
enforced.  "  I  will  not  say,"  he  observed,  "  that  upon  the  evidence  without  the 
answer,  I  should  not  have  had  so  much  doubt  whether  I  ought  not  to  rectify 
the  agreement  upon  which  Stangroom  relies,  as  to  take  more  time  to  consider 
whether  the  bill  should  be  dismissed." 

'  In  cases  analogous  to  specific  performance,  a  writing  has  been  reformed,  and 
consequential  relief  afforded,  in  the  same  suit.  Thus,  a  bond  and  deposit  of  deeds 
having  been  given  to  secure  an  advance,  and  it  appearing  that  the  bond  by  mis- 
take was  usurious,  upon  proof  of  the  mistake,  the  bond  was  rectified,  and  the 
plaintiff  held  entitled  to  the  same  relief  as  an  ordinary  obligee  and  mortgagee. 
Hodgkinson  v.  Wyatt,  9  Beav.,  566.  So,  a  contract  entered  into  between  a  so- 
licitor and  client  for  the  payment  of  a  certain  sum  in  lieu  of  costs,  was  so  errone- 
ously drawn,  as  to  the  name  and  rights  of  the  client,  as,  upon  a  strict  construc- 
tion, to  deprive  the  solicitor  of  the  benefit  of  the  agreement.  The  solicitor  accord- 
ingly brought  a  suit  stating  that  he  had  no  remedy  at  law,  and  praying  that  the 
contract  might  be  rectified  and  an  order  made  for  the  payment  of  the  money 
pursuant  to  the  agreement,  the  same  as  if,  at  the  time  of  its  execution,  it  had  ex- 
pressed the  intention  of  the  parties,  which  the  court  did.  Stedman  v.  Collett, 
17  Beav.,  608. 

■^  Rich  v.  Jackson,  6  Ves.,  334,  n. ;  4  Bro.  C.  C,  514. 


5IO  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  379. 

where  in  a  contract  for  the  lease  of  a  house  at  sixty  pounds 
per  annum,  through  inadvertence,  or  with  some  unfair  view, 
seventy-three  pounds  and  ten  shillings  were  inserted  as  the 
rent,  and  the  lessee  brought  a  suit  for  the  specific  perform- 
ance of  the  agreement  rectified  as  to  the  amount  of  rent, 
evidence  of  the  variation  was  rejected,  and  the  bill  dismissed, 
on  the  ofround  that  thouo;h  it  would  have  been  admissible 
for  the  plaintiff,  if  she  had  been  defendant,  yet  it  could  not 
be  used  to  procure  a  decree/  In  another  case,  it  was  said  : 
"  It  is  a  familiar  doctrine  in  this  court,  that  although  to  re- 
sist a  specific  performance,  a  defendant  may  show,  by  parol, 
that  the  written  document  does  not  represent  the  contract 
between  the  parties,  yet  a  plaintiff  cannot  have  a  decree  for 
a  specific  performance  of  a  written  contract  with  a  variation 
upon  parol  evidence.'"  In  the  United  States,  this  distinc- 
tion between  the  right  of  the  plaintiff  and  defendant  to  re- 
lief in  case  of  mistake,  has  been  objected  to  and  disregarded 
by  the  highest  authority,  as  artificial,  and  inconsistent  with 
the  general  principles  of  equity  ;  though  some  of  the  Ameri- 
can courts  have  to  a  certain  extent  adhered  to  the  English 
view.  On  the  whole,  however,  it  may  now  be  considered 
as  the  established  doctrine  in  this  country,  that  when  the 
plaintiff  might  maintain  a  suit  for  the  reformation  of  a 
written  contract,  it  is  competent  for  him  to  introduce  parol 
evidence  of  mistake,  on  a  bill  for  specific  performance.' 

'  Woolam  V.  Hearn,  7  Ves.,  211  ;  and  see  Higginson  v.  Clowes,  15  Ves.,  516, 
523;  Winch  V.  Winchester,  i  V.  &  B.,  375,  378  ;  Clinan  v.  Cooke,  i  Sch.  &  Lef., 
22,  38  ;  Manser  v.  Back,  6  Hare,  447  ;  Atty.  Genl.  v.  Sitwell,  i  Y.  &  C.  Ex.,  559. 

-  Lord  Cottenham  in  Squire  v.  Campbell,  i  My.  &  Cr.,  480.  And  see  London 
&  Birmingham  R.R.  Co.  v.  Winter,  Cr.  &  Ph.,  57  ;  Emmett  v.  Dewhurst,  3  M'N. 
&  G.,  587. 

'  Keisselbrack  v.  Livingston,  4  Johns  Ch.,  144;  Lyman  v.  United  Ins.  Co.,  17 
Johns,  377;  Gouverneur  v.  Titus,  i  Edw.  Ch.,  477 ;  Coles  v.  Brown,  10  Paige 
Ch.,  535;  Bellows  V.  Stone,  14  N.  H.,  175;  Philpott  v.  Elliott,  4  Md.  Ch.,  273; 
Beardsley  v.  Knight,  10  Vt.,  185  ;  Wooden  v.  Haviland,  18  Conn.,  loi  ;  White 
V.  Port  Huron  R.R.  Co.,  13  Mich.,  356.  Some  of  the  decisions  accept  the  doc- 
trine with  the  qualification  that  where  the  contract  is  within  the  statute  of  frauds, 
parol  evidence,  while  it  is  admissible  in  behalf  of  the  plaintiff  to  restrict  the  writ- 
ten instrument,  cannot  be  received  to  enlarge  or  extend  its  operation.  See  Glass 
V.  Hulbert,  102  Mass.,  24  ;  Osborne  v.  Phelps,  19  Conn.,  62  ;  Elder  v.  Elder,  10 
Me.,  80;  Thomas  v.  McCormick,  9  Dana,  108;  Whittaker  v.  Van  Schoiack,  5 
Oregon,  113. 

In  Keisselbrack  v.  Livingston  supra,  Chancellor  Kent  said  :  "  Why  could  not 


§  379-       RIGHT    OF    PLAINTIFF    TO    ENFORCE    CONTRACT.        5 II 

And,  under  the  existing  practice  in  several  of  the  States,  the 
plaintiff  may  unite,  in  the  same  suit,  a  claim  for  legal  as  well 

the  party  aggrieved  by  a  mistake  in  an  agreement,  have  relief  as  well  when  he  is 
plaintiff,  as  when  he  is  defendant?  It  cannot  make  any  difference  in  the  reason- 
ableness and  justice  of  the  remedy,  whether  the  mistake  were  to  the  prejudice 
of  the  one  party  or  the  other.  If  the  court  be  a  competent  jurisdiction  to  cor- 
rect such  a  mistake  (and  that  is  a  point  understood  and  settled),  the  agreement, 
when  corrected  and  made  to  speak  the  real  sense  of  the  parties,  ought  to  be  en- 
forced as  well  as  any  other  agreement  perfect  in  the  first  instance.  It  ought  to 
have  the  same  efficacy,  and  be  entitled  to  the  same  protection,  when  made  accu- 
rate under  the  decree  of  the  court,  as  when  made  accurate  by  the  act  of  the  par- 
ties." On  the  same  subject,  Mr.  Story  uses  the  following  language :  "  It  is,  in 
effect,  a  declaration  that  parol  evidence  shall  be  admissible  to  correct  a  writing 
as  against  a  plaintiff,  but  not  in  favor  of  a  plaintiff  seeking  specific  performance. 
There  is  therefore  no  mutuality  or  equality  in  the  operation  of  the  doctrine. 
The  ground  is  very  clear,  that  a  court  of  equity  ought  not  to  enforce  a  con- 
tract, where  there  is  a  mistake,  against  the  defendant  insisting  upon  and  estab- 
lishing the  mistake  ;  for  it  would  be  inequitable  and  unconscientious.  And  if 
the  mistake  is  vital  to  the  contract,  there  is  a  like  clear  ground  why  equity  should 
interfere  at  the  instance  of  the  party  as  plaintiff,  and  cancel  it ;  and  if  the  mis- 
take is  partial  only,  why,  at  his  instance,  it  should  reform  it.  In  these  cases,  the 
remedial  justice  is  equal ;  and  the  parol  evidence  to  establish  it,  is  equally  open 
to  both  parties  to  use  as  proof  Why  should  not  the  party  aggrieved  by  a  mis- 
take in  an  agreement,  have  rehef  in  all  cases,  where  he  is  plaintiff,  as  well  as 
where  he  is  defendant?  Why  should  not  parol  evidence  be  equally  admissible 
to  establish  mistake  as  the  foundation  of  relief  in  each  case  ?  The  rules  of  evi- 
dence ought  certainly  to  work  equally  for  the  benefit  of  each  party."  "  It  may 
be  added,  that  if  the  doctrine  be  founded  upon  the  impropriety  of  admitting  parol 
evidence  to  contradict  a  written  agreement,  that  rule  is  not  more  broken  in  upon 
by  the  admission  of  it  for  the  plaintiff,  than  it  is  by  the  admission  of  it  for  the 
defendant.  If  the  doctrine  had  been  confined  to  cases  arising  under  the  statute 
of  frauds,  it  would,  if  not  more  intelligible,  at  least  have  been  less  inconvenient 
in  practice.  But  it  does  not  appear  to  have  been  thus  restricted,  although  the 
cases  in  which  it  has  been  principally  relied  on,  have  been  of  that  description. 
It  will  often  be  quite  as  unconscientious  for  a  defendant  to  shelter  himself  under 
a  defence  of  this  sort,  against  a  plaintiff  seeking  the  specific  performance  of  a 
contract  and  the  correction  of  a  mistake,  as  it  will  be  to  enforce  a  contract 
against  a  defendant  which  embodies  a  mistake  to  his  prejudice."  Story's  Eq. 
Juris.,  Sec.  161,  note. 

In  an  early  case  in  New  York  (Gillespie  v.  Moon,  2  Johns  Ch.,  585),  a  bill  was 
filed  to  correct  a  mistake  in  a  deed  to  the  defendant,  which,  by  an  error  in  the 
description  of  the  land,  conveyed  two  hundred  and  fifty  acres,  instead  of  two  hun- 
dred acres,  parcel  of  the  same.  The  mistake  was  denied  in  the  answer  ;  and  it 
was  objected  that  parol  proof  of  the  mistake  was  not  admissible  in  contradiction 
of  the  deed,  and  especially  in  opposition  to  the  defendant's  answer.  Chancellor 
Kent,  in  holding  that  the  complainant  was  entitled  to  a  decree,  said  :  "  I  have 
looked  into  most,  if  not  all,  of  the  cases  on  this  branch  of  equity  jurisdiction,  and 
it  appears  to  me  to  be  established,  and  on  great  and  essential  grounds  of  justice, 
that  relief  can  be  had  against  any  deed  or  contract  in  writing,  founded  in  mis- 
take or  fraud.  The  mistake  may  be  shown  by  parol  proof,  and  relief  granted  to 
the  injured  party,  whether  he  sets  up  the  mistake  affirmatively  by  bill,  or  as  a  de- 
fence. It  has  been  said  that  there  was  no  instance  of  a  mistake  corrected  in 
favor  of  a  plaintiff,  against  the  answer  of  the  defendant  denying  the  fact  of  the 
mistake  ;  but  1  do  not  understand  any  dicta  on  this  point  to  mean  that  the  an- 
swer denying  the  mistake  shuts  out  the  parol  proof,  and  renders  relief  unattain- 
able, however  strong  the  proof  may  be.  The  observations  of  Lord  Eldon  in  the 
case  of  the  Marquis  of  Townshend  v.  Stangroom,  6  Ves.,  328,  certainly  imply  no 


512  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  379. 

as  equitable  relief.'  Where  the  plaintiff  sought  to  have  a 
written  contract  reformed  on  the  ground  that,  as  alleged 
in    the    complaint,  a  material  part  of  the  agreement  was 

more  than  that  the  answer  is  entitled  to  weight  in  opposition  to  the  parol  proof; 
but  it  certainly  can  be  overcome  by  such  proof.  In  that  very  case,  the  answer 
denied  the  mistake,  yet  parol  proof  was  held  admissible.  The  lord  chancellor  only 
said  that  the  evidence  must  be  taken  with  due  regard  being  had  to  the  answer, 
and  that  it  must  not  be  forgotten  to  what  extent  the  answer  of  one  of  the  par- 
ties admits  or  denies  the  intention.  Lord  Thurlow  said  that  there  was  so  much 
difficulty  in  establishing  the  mistake  to  the  entire  satisfaction  of  the  court,  that 
it  had  never  prevailed  against  the  answer  denying  the  mistake.  I  am  not  in- 
clined, on  light  grounds,  to  contradict  such  high  authority.  But  as  I  read  the 
case  of  Pitcairn  v.  Ogbourne,  2  V'es.,  375,  before  Sir  John  Savage,  the  bill  was  to 
be  relieved  against  an  annuity  bond,  and  to  reduce  the  sum  from  one  hundred 
and  fifty  pounds,  to  one  hundred  pounds,  according  to  the  original  understand- 
ing and  agreement  of  the  parties.  The  answer  denied  positively  all  the  circum- 
stances and  every  particular  of  the  private  agreement,  and  parol  proof,  by  several 
witnesses,  w'as  objected  to  and  admitted,  which  falsified  the  answer,  and  made 
out  the  real  agreement  to  the  satisfaction  of  the  court ;  and  though  relief  was 
not  granted,  it  was  refused  upon  other  and  distinct  grounds  no  ways  connected 
with  the  question  as  to  the  competency  and  effect  of  the  proof." 

'  Walker  v.  Sedgwick,  8  Cal.,  398;  Gray  v.  Dougherty,  25  lb.,  266;  Lattin  v. 
McCarty,  41  N.  Y.,  107.  In  New  York,  under  the  code,  when,  in  an  action  to 
recover  real  estate,  plaintiff's  claim  is  founded  upon  a  legal  title,  the  defendant 
may  avail  himself  of  an  equitable  right  to  defeat  that  title  by  way  of  defence  in 
the  suit.  Crary  v.  Goodman,  12  N.  Y.,  266.  An  equitable  defence  may  now  be 
interposed  as  well  in  an  action  of  ejectment  as  in  any  other  form  of  proceeding, 
and  the  defendant  may  also  claim  in  the  same  action  any  affirmative  relief  to 
which  he  shows  himself  to  be  entitled.  Bartlett  v.  Judd,  21  N.  Y.,  200;  Cavall 
v.  Allen,  57  lb.,  508.  In  a  suit  on  a  policy  of  insurance  to  recover  the  amount 
of  a  loss  by  fire,  and  asking  that  in  case  it  is  deemed  necessary  to  the  recovery, 
that  the  policy  may  be  reformed  and  corrected,  it  is  erroneous  to  dismiss  the 
complaint  on  the  mere  ground  that  the  plaintiff  has  not  entitled  himself  to  the 
equitable  relief  demanded,  if  there  be  enough  left  of  his  case  to  entitle  him  to 
recover  the  sum  for  which  he  was  insured.  N.  Y.  Ice  Co.  v.  Northwestern  Ins. 
Co.,  23  N.  Y.,  357.  Under  the  New  York  code  there  may  be  a  joinder  of  legal 
and  equitable  causes  of  action.  Phillips  v.  Gorham,  17  N.  Y.,  270.  See  Cas- 
well v.  West,  3  Thomp.  &  Cook,  383.  In  a  suit  for  the  reformation  of  a  deed 
on  the  ground  that  a  reservation  of  certain  timber  was  omitted  by  mistake,  and 
for  an  accounting  by  the  defendant  for  timber  removed  from  the  premises,  judg- 
ment was  rendered  for  the  plaintiff  correcting  the  deed  and  for  the  value  of  the 
timber  removed  by  the  defendant.  Welles  v.  Yates.  44  N.  Y.,  525.  In  Lamb 
v.  Buckmiller,  17  N.  Y.,  620,  Roosevelt,  J.,  in  delivering  the  opinion  of  the  court, 
said :  "  I  shall  assume,  as  has  several  times  been  decided,  that  legal  and  equita- 
ble relief  may  be  asked  for  in  one  action,  and  that  the  plaintiff  claiming  under  a 
defective  deed,  and  showing  sufficient  grounds  for  its  reform,  may  have  the  same 
remedy  as  if  he  had  brought  two  actions,  one  to  reform  the  instrument,  the  other 
to  enforce  it  as  reformed."  In  Kentucky,  under  the  code,  the  defendant  may 
rely  upon  equitable  as  well  as  legal  defences.  Either  party  may  move  to  trans- 
fer an  equitable  issue  presented  by  the  pleadings  to  the  equity  docket.  But  if 
no  such  motion  be  made,  the  issue  must  be  disposed  of  by  the  court  before  a 
judgment  can  be  rendered  tor  the  plaintiff.  Petty  v.  Malier,  15  B.  Mon.,  591. 
In  Missouri,  "A  plaintiff  may  unite  in  the  same  petition  several  causes  of  action, 
whether  they  be  legal  or  equitable,  or  both,  if  ihey  arise  out  of  the  same  trans- 
action, and  are  connected  with  the  same  subject  of  action.  But  where  causes 
of  action  are  thus  united,  they  must  be  separately  stated,  with  the  relief  sought 


§  379-       RIGHT    OF    PLAINTIFF    TO    ENFORCE    CONTRACT.        513 

omitted  by  mistake,  and  when  reformed  and  made  to  ex- 
press the  agreement  intended  by  the  parties  to  it  to  have  it 
enforced  against  the  defendant,  and  that  the  defendant  pay 
to  the  plaintiff  a  certain  sum  due  on  said  contract,  with  in- 
terest, it  was  held  that  the  case  presented  a  single  cause  of 
action,  and  that  it  was  a  proper  subject  of  equitable  juris- 
diction ;  the  rule  being,  that  the  jurisdiction  of  equity  hav- 
ing once  attached,  it  shall  be  made  effectual  for  the  pur- 
poses of  complete  relief/  The  doctrine  of.  reformation  and 
specific  performance  has  been  held  to  apply,  whether  the 
effect  of  the  parol  evidence  be  to  abridge  or  extend  the 
written  instrument/     Where  the  defendant  agreed  in  writ- 

for  in  each  cause  of  action.  (Wagn.  Stat.  1012,  Sec.  2).  Under  this  provision 
of  the  statute,  the  petition  may  embody  a  count  in  equity  and  a  count  at  law,  if 
they  arise  out  of  the  same  transaction  and  relate  to  the  same  subject  matter. 
But  they  should  be  separately  stated  and  intelligently  distinguished,  for  they  re- 
quire separate  trials  and  separate  judgments.  Their  joinder  in  the  same  count 
would  be  fatally  defective."  Henderson  v.  Dickey,  50  Mo.,  161,  per  Wagner,  J. 
See  Jones  v.  Moore,  42  Mo.,  413.  "  There  may  be  cases  concerning  real  estate 
purely  equitable  in  their  character,  where  the  court  would  possess  the  power  to 
decree  that  the  possession  should  be  delivered  up  and  surrendered.  But  it  is 
improper  to  mingle  a  cause  which  is  purely  equitable  with  one  that  is  strictly 
legal  in  the  same  count  in  a  petition,  and  proceed  to  try  them  together  before  a 
chancellor.  But  it  does  not  thence  follow  that,  in  all  cases,  a  party  must  first 
get  his  decree  for  title,  and  then  bring  a  separate  and  independent  action  in 
ejectment  to  obtain  possession.  An  intimation  of  this  kind  was  thrown  out  in 
Peyton  v.  Rose,  41  Mo.,  257,  which  has  been  followed  in  subsequent  cases,  but 
we  think  the  doctrine  has  been  too  broadly  stated."  Henderson  v.  Dickey,  su- 
pra. In  Minnesota,  under  the  statute  (Comp.  St.,  Ch.  60,  Sec.  87),  the  plaintiff 
may  unite  several  causes  of  action  in  his  complaint,  whether  legal  or  equitable, 
when  they  are  included  in  the  same  transaction  or  transactions,  and  connected 
with  the  subject  of  the  action.  Montgomery  v.  McEwen,  7  Minn.,  351  ;  Guern- 
sey V.  Am.  Ins.  Co.,  17  lb.,  104.   . 

'  Gooding  v.  M'Alister,  9  How.  Pr.,  123.  If  in  a  suit  for  the  specific  perform- 
ance of  a  parol  agreement  to  convey  real  estate,  the  plaintiff  fails  to  show  that 
he  is  entitled  to  the  equitable  relief  sought,  he  cannot  have  judgment  for  moneys 
advanced  and  personal  services  rendered  under  the  agreement.  Horn  v.  Lud- 
ington,  32  Wis.,  73  ;  Supervisors  of  Kewaunee  Co.  v.  Decker,  30  lb.,  624.  See 
Lawe  v.  Hyde,  39  lb.,  345. 

-  Moale  V.  Buchanan,  11  Gill  &  Johns,  314;  Leitensdorfer  v.  Delphy,  15  Mo., 
160;  Wright  V.  McCormick,  22  Iowa,  545.  But  in  Massachusetts  it  has  been 
held  that,  in  a  suit  for  relief  on  the  ground  of  mistake  or  fraud,,  in  omitting  from 
a  conveyance  of  real  estate  a  portion  of  the  land  verbally  agreed  to  be  conveyed, 
the  plaintiff  cannot  compel  a  conveyance  of  such  omitted  part  against  a  vendor 
denying  the  contract  and  setting  up  the  statute  of  frauds ;  that  the  only  remedy 
in  such  case  would  be  a  rescission  of  the  entire  contract ;  and  that  possession 
by  the  purchaser  under  such  a  deed  is  possession  according  to  the  title  conveyed, 
and  not  such  a  possession  as  to  afford  ground  for  enforcing  an  alleged  oral  agree- 
ment to  convey  other  land  claimed  to  have  been  embraced  in  the  same  oral 
agreement  with  that  conveyed.     Glass  v.  Hulbert,  102  Mass.,  24.     "  The  prin- 

2>Z 


514  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  380. 

ino;  to  execute  a  lease  "containing  the  usual  clauses,  re- 
strictions, and  reservations  contained  in  the  leases  given  by 
him,"  and  it  was  insisted  by  the  plaintiff  that  there  was  a 
mistake  in  the  generality  of  the  expression  that  the  lease 
was  to  contain  the  "usual  clauses,"  etc.,  it  was  held  that 
parol  evidence  was  admissible  to  show  what  was  the  under- 
standing of  the  parties  at  the  time  of  entering  into  the 
agreement.' 

§  380.  Proof  of  mistake  inwj'iiten  instrument. — As  the 
writing  is  usually  the  best  evidence  of  the  intention  of  the 
parties,  when  the  reformation  and  enforcement  of  a  con- 
tract is  sought  on  the  ground  of  mistake,  the  parol  testi- 
mony must  be  clear  and  strong,  and  such  as  to  leave  no 
doubt  of  the  mistake.'  When  the  denial  is  direct  and  posi- 
tive, the  plaintiff  must  make  out  his  case  by  satisfactory  evi- 
dence outweighing  the  answer.'     It  has  been  said  that  the- 


ciple  on  which  courts  of  equity  rectify  an  instrument  so  as  to  enlarge  its  opera- 
tion, or  to  convey  or  enforce  rights  not  found  in  the  writing  itself,  and  make  it 
conform  to  the  agreement  as  proved  by  parol  evidence,  on  the  ground  of  an 
omission  by  mutual  mistake  in  the  reduction  of  the  agreement  to  writing,  is,  as 
we  understand  it,  that  in  equity  the  previous  agreement  is  held  to  subsist  as  a 
binding  contract,  notwithstanding  the  attempt  to  put  it  in  writing."  Ibid.,  per 
Wells,  J. 

'  Keisselbrack  v.  Livingston,  supra.  And  see  Coutt  v.  Craig,  2  Hen.  &  Munf., 
618. 

'■^  Henkle  v.  Royal  Exch,  Assurance  Co.,  i  Ves.  Sen.,  317  ;  Vouillon  v.  States,  25 
L.  J.  Ch.,  875  ;  Godell  v.  Field,  1 5  Vt.,  448 ;  Harrison  v.  Howard,  i  Ired.  Eq.,  407  ; 
Huston  V.  Noble,  4  J.  J.  Marsh,  130  ;  Anderson  v.  Bacon,  i  lb.,  48  ;  Watkins  v. 
Stockett,  6  Har.  &  Johns,  435  ;  Lauderdale  v.  Hallock,  7  Sm.  &  Marsh,  622  ; 
Ross  v.  Wilson,  lb.,  753 ;  Planque  v,  Guesnon,  15  La.  An.,  312  ;  Wurzburger  v. 
Meric,  20  lb.,  415  ;  Bradford  v.  Union  Bank  of  Tennessee,  13  How.,  57  ;  Guern- 
sey v.  Am.  Ins.  Co.,  17  Minn.,  104;  Hunter  v.  Bilyou,  30  III.,  228;  Selby  v. 
Geines,  12  lb.,  69;  Stine  v.  Sherk,  i  Watts  &  Serg.,  195;  Brady  v.  Parker,  4 
Ired.  Eq.,  430;  Kuckenbeiser  v.  Beckert,  41  111.,  172;  Cleary  v.  Babcock,  lb., 
271  ;  Mills  V.  Lockwood,  42  lb.,  in  ;  McDonald  v.  Starkey,  lb.,  442  ;  McClos- 
key  V.  McCormick,  44  lb.,  336 ;  Shively  v.  Welch,  2  Oregon,  288 ;  Lyman  v. 
United  Ins.  Co.,  17  Johns,  373  ;  Sawyer  v.  Hovey,  3  Allen,  331  ;  Tesson  v.  At- 
lantic Mu.  Ins.  Co.,  40  Mo.,  33.  In  Marquis  Townshend  v.  Stangroom,  6  Ves., 
333,  Lord  Eldon  said  that  the  proof  must  be  the  "  strongest  possible"  ;  and  Lord 
Thurlow,  in  Shelburne  v.  Inchiquin,  i  Bro.  C.  C,  338,  that  it  must  be  strong  and 
irrefragable.  In  Gillespie  v.  Moon,  2  Johns  Ch.,  585,  Chancellor  Kent,  after  re- 
viewing all  of  the  theh  authorities  on  the  subject,  says  :  ^'  The  cases  concur  in 
the  strictness  and  difficulty  of  the  proof" 

'  M'Mahon  v.  Spangler,  4  Rand,  51  ;  Lyman  v.  United  Ins.  Co.,  2  Johns  Ch., 
630 ;  Broadwell  v.  Broadwell,  i  Gilman,  599.  Formerly  the  court  would  not 
relieve  against  a  mistake  of  fact,  unless  it  was  admitted  by  the  defendant.  But 
this  is  no  longer  required. 


§  380.      PROOF    OF    MISTAKE    IN    WRITTEN    INSTRUMENT.       515 

evidence  required  to  prove  a  mistake  when  it  is  denied 
must  be  as  satisfactory  as  if  the  mistake  were  admitted,  and 
that  the  difficulty  of  doing  this  is  so  great,  that  there  is  no 
instance  of  its  prevaihng  against  a  party  insisting  that  there 
is  no  mistake.'  But  these  and  similar  remarks  of  judges, 
however  eminent,  form  no  rule  of  law  to  direct  courts  in 
dispensing  justice.  When  the  mind  of  the  court  is  entirely 
convinced  upon  any  disputed  question,  it  is  its  duty  to  act 
upon  the  conviction.'  The  court  will  look  at  the  surround- 
ing circumstances  existing  when  the  contract  was  entered 
into,  the  situation  of  the  parties,  and  the  subject  matter  of 
the  contract,  and  all  the  provisions  and  expressions  of  the 
instrument.  The  court  will  also  call  in  aid  the  acts  done 
under  the  contract  and  deed,  and  contemporaneous  writ- 
ings made  between  the  parties  at  or  near  the  time  W'hen 
the  deed  was  executed  relating  to  the  same  subject  matter.' 
Where  it  is  alleged  that  a  deed  purports  to  convey  more 
land  than  the  vendor  owned,  it  may  be  proved  that  the  ven- 
dee has  all  the  land  shown  to  him  to  be  sold,  and  that  if 
his  deed  comprises  more,  it  is  a  mistake."  If  the  plaintiff's 
proof  be  merely  the  recollection  of  witnesses,  and  there  is 
no  documentary  evidence  or  corroborating  circumstances, 
the  denial  of  the  defendant  will  leave  the  plaintiff  without 
remedy.'  It  is  not  enough  to  prove  that  witnesses  under- 
stood the  parties  differently.  It  must  be  shown  that  the 
true  intention  of  both  parties  was  different,  and  that,  by 
some  mistake  or  fraud,  such  intention  was  not  truly  repre- 
sented in  the  writing.'  When  a  deed  is  to  be  rectified  by 
a  writing  in  which  there  is  a  latent  ambiguity,  parol  evi- 
dence is  admissible  to  explain  it' 

1  Lord  Thurlow  in  Irnham  v.  Child,  i  Bro.  C.  C,  92. 

2  Doubts  of  the  court  of  review  as  to  whether  the  evidence  of  an  alleged  mis- 
take was  sufficient,  will  not  justify  a  reversal.  Clayton  v.  Freet,  10  Ohio  St., 
544- 

'  Winnipisseogee  Manf.  Co.  v.  Perley,  46  N.  H.,  83. 

*  Bowman  v.  Bittenbender,  4  Watts,  290. 

^  Mortimer  v.  Shorhall,  2  Dr.  &  W.,  363,  374.  But  see  Pitcairn  v.  Ogbourne, 
2  Ves.  Sen.,  375. 

*  Coffing  V.  Taylor,  16  111.,  457.  '  Murray  v,  Parker,  19  Beav.,  305. 


5l6      MISREPRESENTATION,   FRAUD,   OR  MISTAKE.     §§381,382. 

§  381.  Presu7nption  of  mistake. — If  an  antecedent  equity 
is  clearly  established  in  favor  of  the  party  seeking  relief, 
and  a  legal  right  has  been  extinguished  under  circumstances 
which  justify  the  inference  of  a  mistake  in  fact,  a  court  of 
equity  will  presume  such  mistake,  and  enforce  the  equitable 
claim  to  prevent  manifest  injustice  and  hardship.  A.  hav- 
ing given  a  mortgage  on  certain  real  estate  owned  by  him, 
to  B.,  for  four  thousand  five  hundred  dollars,  soon  after 
died,  leaving  C.  and  D.  his  sole  heirs  at  law.  D.  conveyed 
his  interest  in  the  land  to  C,  the  latter  assuming  the  pay- 
ment of  the  mortgage.  C.  then  obtained  from  B.  a  loan 
of  four  hundred  and  thirty  dollars,  which,  together  with 
the  mortgage  debt  and  interest,  made  the  sum  of  five 
thousand  two  hundred  dollars  ;  and  for  this  amount,  C. 
gave  to  B.  his  mortgage  upon  the  same  land.  B.  there- 
upon cancelled  the  mortgage  given  by  A.  Subsequently, 
the  administrators  of  the  estate  of  A.  were  proceeding  to 
advertise  and  sell  the  land  under  an  order  of  the  surrogate 
for  the  payment  of  the  debts  of  the  intestate,  when  B. 
filed  a  bill  for  an  injunction  restraining  them,  and  seeking 
to  have  the  land  sold  and  the  proceeds  applied  in  payment 
of  his  mortgage  debt,  which  was  decreed.' 

§  382.  Mistake  how  to  be  alleged. — Where  the  bill  seeks 
to  reform  a  written  instrument  on  the  ground  of  mistake, 
there  must  be  an  express  averment  that  the  instrument,  as 
existing,  differs  from  the  intention  of  the  parties,  stating 
the  particulars,  and  concluding  with  a  prayer  for  the  cor- 
rection of  the  mistake,  and  for  a  decree  in  accordance  with 
the  reformed  instrument."  When  the  complainant  wishes 
to  introduce  parol  evidence  to  correct  a  written  instru- 
ment, he  should  not  merely  state  the  agreement  as  it  ought 
to  have  been  reduced  to  writing,  but  he  should  also  state 
the  substance  of  the  written  agreement,  and  show  wherein 
it   differs  from  the  one  actually  made  ;  so  that  if  the  al- 

'  Hyde  v.  Tanner,  i  Barb.,  75. 

*  U.  S.  V.  Munroe,  5  Mason,  572  ;  Wesley  v.  Thomas,  6  Har.  &  Johns,  24. 


§   T,S^.  ASSENT    OF    PLAINTIFF.  517 

leged  mistake  is  denied  in  the  answer,  the  testimony  may 
be  directed  to  the  question  whether  a  mistake  has  or  has 
not  occurred  in  reducing  the  agreement  to  writing.  The 
party  alleging  a  mistake  in  such  a  case,  holds  the  affirma- 
tive ;  and  he  must  satisfy  the  court  beyond  all  reasonable 
doubt  that  such  an  agreement  as  he  claims  to  have  been 
made  was  in  fact  made  between  the  parties,  and  that, 
either  by  fraud  or  accident,  a  mistake  has  occurred  in  re- 
ducing the  actual  agreement  to  writing.' 

§  383.  Assent  of  plaintiff  to  agreement  varied  by  parol. 
— Where  the  defendant  sets  up  a  parol  variation  in  defence 
to  a  bill  for  the  specific  performance  of  a  written  contract, 
if  the  plaintiff  assents  thereto,  he  may  in  general  amend 
his  bill,  and  have  a  specific  performance  of  the  written  con- 
tract with  the  variation  so  set  up ;  for  under  such  circum- 
stances there  is  a  written  admission  of  each  party  to  the 
parol  variation."  It  will  depend,  however,  upon  the  cir- 
cumstances of  each  case  whether  the  court  will  dismiss  the 
bill,  or  enforce  the  contract  taking  care  that  the  subject 
matter  of  the  parol  agreement  or  understanding  is  carried 
into  effect.'  If  the  plaintiff  has  attempted  in  the  first  in- 
stance to  commit  a  fraud,  or  if  the  claim  is  wholly  inequi- 
table, or  there  has  been  great  laches,  the  court  may,  upon 
the  fact  of  the  omission  of  part  of  the  contract  being 
shown,  dismiss  the  bill,  notwithstanding  the  plaintiff  offers 
to  take  his  order  for  specific  performance  of  the  contract, 
as  modified,  by  supplying  its  omissions.'  Upon  a  bill  for 
the  specific  performance  of  a  contract  in  writing  for  the 
lease  of  two  stores  to  the  defendant  for  a  specified  sum,  it 
appeared  that  in  drafting  the  contract  one  of  the  stores  was 
omitted,  so  that  the  contract,  as  written,  purported  to  be 


1  Coles  V.  Bowne,  10  Paige  Ch.,  526. 

'  Story's  Eq.  Juris.,  Sec.  770,  a  ;  Marquis  Townshend  v.  Stang-room,  6  Ves., 
328  ;  Ramsbottom  v.  Gosden,  i  Ves.  &  B.,  165  ;  Gordon  v.  Hertford,  2  Mad., 
106  ;  Clarke  v.  Moore,  i  J.  &  L.  723.     But  see  Park  v.  Johnson,  4  Allen,  259. 

'  London  &  Birmingham  R.R.  v.  Winter,  i  Cr.  &  Ph.,  57. 

*  Garrard  v.  Grinling,  2  Swanst.,  244. 


5l8       MISREPRESENTATION,  FRAUD,  OR  MISTAKE.     §§384,385. 

an  agreement  to  lease  one  store  only  for  the  sum  fixed  as 
the  rent  of  both  stores.  The  defendant  having  proved  by 
parol  the  real  contract,  the  plaintiff  offered  to  take  his  de- 
cree upon  that.  The  chancellor,  in  dismissing  the  bill, 
said  :  "If  he  attempts  to  perpetrate  a  fraud  and  fails,  I 
shall  take  care  that  he  fails  altogether.'" 

§  384.  Where  correction  of  mistake  would  impair  a 
right. — A  transaction  will  not  be  relieved  against  on  the 
ground  of  mistake  without  regard  being  had  by  the  court 
to  the  just  equities  between  the  parties.  If  the  parties  can- 
not be  restored,  with  reference  to  their  rights,  to  the  situ- 
ation they  occupied  previous  to  the  transaction,  or  if  the 
mistake  cannot  be  corrected  without  impairing  the  rights 
of  innocent  third  persons  who  had  no  knowledge  of  the 
mistake  when  their  rights  were  acquired,  a  court  of  equity 
will  withhold  its  aid."* 

§  385.  Lapse  of  tijue. — There  is  no  rule  of  law  which 
determines  the  time  within  which  a  person  may  discover 
that  a  writing  does  not  express  the  contract  which  he  sup- 
posed it  to  contain,  and  which  bars  him  of  relief  for  delay 
in  asserting  his  rights,  short  of  the  period  fixed  by  the 
statute  of  limitations.  But  lapse  of  time  without  objection 
is  a  circumstance  to  be  weighed  by  the   court  as   bearing 

^  Molloy  V.  Eagan,  7  Ir.  Eq.,  590. 

-  M'Alpine  v.  Swift,  i  Ba.  &  Be.,  293 ;  Dacre  v.  Georges,  2  Sim.  &  Stu.,  454 ; 
Maiden  v.  Menill,  2  Atk.,  8 ;  Warrick  v.  Warrick,  3  lb.,  293  ;  Clifton  v.  Cock- 
burn,  2  M.  &  K.,  76;  Blackie  v.  Clark,  15  Beav.,  595  ;  Bateman  v.  Boynton,  L. 
R.  I,  Ch.  359.  But  see  O.xwick  v.  Brockett,  i  Eq.  Ca.  Ab.,  355.  "There  are 
few  cases  in  which  equity  will  insist  on  the  maxim  that  he  who  seeks  equity 
must  do  it,  with  more  rigor  than  in  those  of  suits  for  speciiic  performance." 
Leading  Cases  in  Eq.,  Vol.  2,  p.  550.  And  it  makes  no  difference  whether  the 
inequitable  circumstances  arose  prior  or  subsequent  to  the  date  of  the  contract 
sought  to  be  enforced.  Perkins  v.  Wright,  3  Har.  &  McHen.,  326.  The  vendor 
of  land,  the  purchase  money  remaining  unpaid,  recovered  judgment  at  law  for 
the  same  against  the  vendee  in  possession,  and,  under  an  e.xecution,  sold  the 
land,  became  the  purchaser  for  an  amount  less  than  the  purchase  money,  took  a 
deed  from  the  sheriff,  and  went  into  possession.  The  original  vendee  then  ten- 
dered the  amount  due  on  the  contract,  after  deducting  the  amount  ostensibly 
made  by  the  sheriff's  sale,  and  filed  a  petition  for  a  specific  performance  of  the 
contract  of  sale.  It  was  held  that  on  this  state  of  facts  the  petitioner  was  not 
entitled  to  a  decree ;  but  that  if  he  had  averred  a  willingness  to  pay  the  full 
amount  of  the  purchase  money  due  after  deducting  therefrom  the  rents,  issues, 
and  profits  of  the  land  while  held  by  the  defendant,  a  different  case  would  have 
been  presented.     Huntington  v.  Rogers,  9  Ohio  St.,  511. 


§  386.  PAROL   WAIVER    OF    CONTRACT.  519 

upon  the  truth  of  the  complainant's  allegation  that  the 
written  instrument  is  not  conformable  to  the  agreement  of 
the  parties.' 

§  386.  Parol  waiver  of  co7ttract. — An  executory  written 
agreement  not  under  seal  may,  before  breach,  be  discharged 
and  abandoned,  or  waived,  by  a  subsequent  unwritten 
agreement,  as  well  where  the  original  contract  is  required 
by  the  statute  of  frauds  to  be  in  writing,  as  where  a  writing 
is  unnecessary.'  But  when  the  agreement  to  rescind  rests 
only  in  parol,  it  must  be  shown  by  acts  accompanying  the 
rescission  which  leave  no  doubt  of  the  intent,  such  as  can- 
celling the  contract,  or  removing  from  the  possession.' 
The  declarations  of  a  vendee,  who  continued  in  possession, 
that  he  would  throw  up  his  contract  and  thereafter  hold  as 
tenant  to  his  vendor,  would  not  divest  his  interest*  Where 
it  was  verbally  agreed  to  rescind  a  contract  of  sale,  and  to 
submit  the  matter  in  controversy  to  arbitrators,  who 
awarded  a  rescission,  it  was  held  a  good  defence  to  a  suit 
brought  by  the  vendor  for  specific  performance.'  But 
where  it  was  verbally  agreed  to  rescind  a  bond  to  convey 
land,  and  the  bond  for  title  and  a  note  given  for  the  balance 
of  the  purchase  money  were  left  with  a  third  person,  to  be 
handed  over  to  the  parties  entitled  thereto  when  the  money 
already  paid  by  the  purchaser  was  refunded,  it  was  held 
that  the  agreement  to  rescind  remained  executory,  and  not 

'  Phoenix  Ins.  Co.  v.  Gurnee,  i  Paige  Ch  ,  278  ;  Bidwell  v.  Astor  Mu.  Ins.  Co., 
16  N.  Y.,  263. 

'>■  Buell  V.  Miller,  4  N.  H.,  196  ;  Botsford  v.  Burr,  2  Johns  Ch.,  405  ;  Tolson  v. 
Tolson,  10  Mo.,  736  ;  Buckhouse  v.  Crosby,  2  Eq.  Cas.  Ab.,  32  ;  Goucher  v. 
Martin,  9  Watts,  106;  Boyce  v.  McCulloch,  3  Watts  &  Serg.,  429;  Phil.  Ev., 
444.  A  policy  of  insurance  provided  that  if  the  premises  were  vacant  at  the 
time  of  insuring,  or  became  so  during  the  life  of  the  policy,  without  the  com- 
pany's consent  indorsed  thereon,  the  insurance  should  be  void.  This  condition 
was  printed  in  very  small  type,  and  was  not  discovered  by  the  owner  of  the 
property  until  the  day  after  his  house  was  burned.  It  having  been  proved  that 
the  agent  of  the  insurance  company,  at  the  time  he  issued  the  policy,  knew  that 
the  house  was  vacant,  it  was  held  that  the  indorsement  was  waived,  and  that 
the  owner  was  entitled  to  a  reformation  of  the  policy  in  this  respect,  and  to 
equitable  relief  suitable  to  the  case.  Cone  v.  Niagara  Fire  Ins.  Co.,  3  Thomp. 
&  Cook,  33  ;  Affd.  60  N.  Y.,  619. 

2  Laner  v.  Lee,  42  Pa.  St.,  165.  •*  Bowser  v.  Cravener,  56  Pa.  St.,  132. 

^  England  v.  Jackson,  3  Humph.,  584, 


520  MISREPRESENTATION,    FRAUD,    OR    MISTAKE.         §  387. 

a  defence  to  a  bill  for  specific  performance  until  the  money 
advanced  was  repaid.' 

§  387.  Mistake  in  execution  of  power. — A  court  of  equity, 
on  the  ground  of  accident  or  mistake,  will  relieve  against 
the  defective  execution  of  a  power,  or  a  contract  amounting 
to  such  defective  execution,  in  behalf  of  a  bona  fide  pur- 
chaser for  a  valuable  consideration,  a  creditor,  a  charity, 
wife,  or  child,  where  there  is  not  a  strict  compliance  with 
the  formalities  required  by  the  power;'  but  not,  if  the  de- 
fect be  in  the  substance  of  the  power,  interference  with 
which  would  defeat  the  intention  of  the  donor ; '  nor  where 
there  has  been  no  exercise  of  the  power,  but  a  mere  parol 
promise  or  agreement  to  execute ;  *  nor  if  there  is  some 
counter  equity.'  The  defect  may  consist  of  informality  in 
the  instrument ; "  or  in  the  execution  of  an  instrument  which 
is,  in  itself,  appropriate.'  A  power  created  by  statute,  will 
be  construed  more  strictly,  than  if  created  by  a  private  per- 
son.' Although,  as  a  rule,  a  court  of  equity  will  not  grant 
relief  in  case  of  the  non-execution  of  a  power,  yet  it  will  do 
so  when  the  execution  of  the  power  has  been  prevented  by 
fraud."  Equity  will  not  interfere  in  aid  of  the  execution  of 
a  power,  when  the  intention  of  the  person  creating  the  power 
will  thereby  be  defeated  ;  as  where  a  power  which  should 
have  been  executed  by  will,  has  been  executed  by  deed." 

'  Walker  v.  Wheatly,  2  Humph.,  119. 

'  Chapman  v.  Gibson,  3  Bro.  C.  C,  229;  Shannon  v.  Bradstreet,  i  Sch.  &  Lef., 
63  ;  Sayer  v.  Sayer,  7  Hare,  377  ;  Hughes  v.  Wells,  9  lb.,  769  ;  Affleck  v.  Affleck, 
3  Sm.  &  G.,  394  ;  Harvey  v.  Harvey,  i  Atk.,  567  ;  Meclwin  v.  Sandham,  3  Swanst., 
686  ;  Proby  v.  Landor,  28  Beav.,  504;  Moodie  v.  Reid,  i  Mad.,  516;  Lippincott 
V.  Stokes,  2  Halst.  Ch.,  122;  Howard  v.  Carpenter,  11  Md.,  259;  Mitchell  v. 
Denson,  29  Ala.,  327  ;  Lines  v.  Darden,  5  Fla.,  51. 

*  Lavvrenson  v.  Butler,  i  Sch.  &  Lef.,  13. 

*  Toilet  V.  Toilet,  2  P.  Wms.,  489 ;  Shannon  v.  Bradstreet,  supra ;  Barr  v. 
Hatch,  3  Ohio,  527  ;  Mitchell  v.  Denson,  supra. 

^  I  Fonbl.  Eq.,  B.  i,  Ch.  i.  Sec.  7,  note  V. 

'  Garth  v.  Townsend,  L.  R.  7,  Eq.  220.  '  Morse  v.  Martin,  34  Beav.,  500. 

*  I  Fonbl.  Eq.,  B.  i,  Ch.  i.  Sec.  7,  note  T ;  Curtis  v.  Perrj%  6  Ves.,  739  ;  Mes- 
taer  v.  Gillespie,  1 1  lb.,  621  ;  Thompson  v.  Pulteney,  Coop.,  276 ;  Bright  v.  Boyd, 
1  Story,  478  ;  McBride  v.  Wilkinson,  29  Ala.,  662. 

*  I  Fonbl.  Eq.,  B.  i,  Ch.  i,  Sec.  7. 

"  Reid  V.  Shergold,  10  Ves.,  378  ;  Kerr  on  Fraud  and  Mistake,  442. 


§   T)SS.  CORRECTION    OF    AWARD.  52 1 

§  388.  Correction  of  award. — A  court  of  equity  will  cor- 
rect a  mistake  in  an  award,  when  the  mistake  appears  on 
the  face  of  the  award,  or  is  disclosed  by  some  contempo- 
raneous writing,  or  if  the  arbitrator  voluntarily  admit  a 
mistake,  or  state  circumstances  which  show  clearly  that  the 
proceedings  have  been  erroneous ; '  but  not  an  error  in 
judgment  on  the  merits.'' 

1  Kerr  on  Fraud  and  Mistake,  446-448  ;  Ryan  v.  Blunt,  i  Dev.  Eq.,  382  ; 
Pleasants  v.  Ross,  i  Wash.  Va.,  1 56  ;  Bumpass  v.  Webb,  4  Porter,  65  ;  Taylor 
V.  Nicholson,  i  Hen.  &  Munf.,  6'] ;  Wheatley  v.  Martin,  6  Leigh,  62. 

'  Head  v.  Muir,  3  Rand,  122  ;  Radcliffe  v.  Wightman,  i  McCord  Ch.,  408  ; 
Rudd  V.  Jones,  4  Dana,  229;  Van  Cortland  v.  Underbill,  17  Johns,  405  ;  Hurst 
V.  Hurst,  2  Wash.  C.  C.)  127  ;  Burchell  v.  Marsh,  17  How.,  344;  Cromwell  v. 
Owings,  6  Har.  &  Johns,  10 ;  Boston  Water  Pov/er  Co.  v.  Gray,  6  Mete,  131. 


CHAPTER   XI. 

INABILITY    OF    COURT    TO    ENFORCE    PART    OF    CONTRACT. 

389.  Entire  contract  to  be  enforced. 

390.  In  case  of  acts  to  be  done  by  plaintiff  in  the  future. 

391.  Effect  of  executing  deed  or  obligation. 

392.  Contract  to  be  enforced  on  both  sides. 

393.  Divisibility  of  contract  how  determined. 

394.  When  contract  deemed  entire. 

395.  Entirety  of  contract  how  proved. 

396.  When  contract  regarded  as  divisible. 

397.  In  case  of  distinct  right. 

398.  Contract  enforced  notwithstanding  an  act  connected  with  it  is  to  be  done 

in  the  future. 

399.  In  case  of  default  of  party  objecting,  or  where  performance  of  part  is 

honorary  or  optional. 

§  389.  Agreemejit  to  be  enforced  entii-e. —  Specific  per- 
formance will  not,  in  general,  be  decreed,  unless  the  court 
can  enforce  the  whole  contract.  If  parties  seek  to  enforce 
a  trust  created  under  a  contract,  their  right  to  the  'relief 
demanded  is  founded  on  the  contract  itself,  and  they  can- 
not claim  the  benefit  of  such  portions  of  it  as  are  to  their 
advantage,  and  repudiate  the  rest.'  Where  a  contract  of 
partnership  for  a  term  of  years  did  not  specify  the  amount 
of  the  capital,  or  the  manner  in  which  it  was  to  be  pro- 
vided, it  was  held  that,  as  the  court  could  not  enforce  the 
contract  in  its  entirety,  it  would  not  enforce  it  in  part  by 
decreeing,  in  behalf  of  the  representatives  of  a  deceased 
partner,  a  dissolution  of  the  partnership  and  the  sale  of  the 
partnership  effects.'  Where  part  of  an  award  was  capable, 
and  the  other  part  incapable,  of  being  specifically  enforced, 

'"Pujol  V.  McKinlay,  42  Gal.  559.  Where  land  with  the  fixtures  and  personal 
property  thereon  is  conveyed  in  trust  to  secure  the  payment  of  a  debt,  and  the 
creditors  are  obliged  to  resort  to  a  court  of  equity  to  save  the  personal  property 
and  fixtures  from  destruction,  and  the  application  of  the  proceeds  to  the  pay- 
ment of  the  debt,  the  court  will  take  jurisdiction  of  the  whole  subject  matter  of 
litigation,  and  also  decree  a  sale  of  the  land.     Kraft  v.  De  Forest,  53  Gal,  656. 

"^  Downs  V.  GoUms,  6  Hare,  418. 


§  390-  STIPULATION    AS    TO    FUTURE    ACTS.  523 

the  court  refused  to  interfere.'  A  person  having  agreed  to 
construct  certain  works  which  the  court  could  not  superin- 
tend, and  to  give  a  bond  for  the  performance  of  the  con- 
tract, as  the  court  could  not  enforce  the  construction  of  the 
works,  it  refused  to  compel  the  execution  of  the  bond, 
which  would  have  been  but  a  part  performance  of  the  con- 
tract, and  the  stipulation  as  to  the  works  was  the  substance 
of  the  agreement ;  while  that  as  to  the  bond  was  only  in- 
cidental' 

§  390.  Stipulation  as  to  fittiLve  acts. — When  the  con- 
sideration on  the  part  of  the  plaintiff  is  the  doing  of 
something  in  the  future  which  the  court  cannot  compel, 
specific  performance  of  the  contract  will  be  refused.'  A 
decree  was  denied  for  the  specific  performance  of  a  contract 
to  straighten  a  crooked  river  which  separated  the  lands  of 
the  parties,  they  having  stipulated  for  mutual  compensation 
for  the  soil  which  might  be  changed  from  one  to  the  other, 
and  in  relation  to  contino-ent  damasfes.  The  chancellor 
said :  "  As  far  as  the  merits  of  the  case  go,  I  would  decree 
the  specific  performance  of  this  contract ;  but  I  do  not  see 
how  it  is  possible.  If  I  execute  it  at  all,  I  must  execute  it 
in  toto ;  and  how  can  I  execute  it  prospectively  ?  The 
court  acts  only  on  the  principle  of  executing  it  /;/  specie, 
and  in  the  very  terms  in  which  it  has  been  made.  There- 
fore, when  you  come  to  the  specific  execution  of  a  con- 
tract containing  many  particulars,  you  must  see  that  it  is 
possible  to  execute  it  effectively.  The  court  cannot  say 
that  when  an  event  arises  hereafter,  it  will  then  execute  it. 
In  the  case  of  a  decree  for  the  execution  of  a  contract  for 
the  sale  of  timber,  it  is  no  objection  that  it  is  to  be  cut  at 
intervals.  That  is  certain,  and  there,  mere  delay  will  not 
prevent  the  court  from  executing  it.  There,  the  agreement 
is  executed  in  specie.     The  court  decrees  to  one,  the  very 

^  Nickels  v.  Hancock,  7  De  G.  M,  &  G.,  300.     And  see  Vansittart  v.  Vansitt- 
art,  4  K,  &  J.,  62. 

-  South  Wales  R.R.  Co.  v.  Wythes,  i  K.  &  J.,  186  ;  5  De  G.  M.  &  G.,  880. 
'  Waring  v.  Manchester,  Sheffield  &  Lincolnshire  R.R.  Co.,  7  Hare,  482. 


524        ENFORCEMENT  OF  TART  OF  CONTRACT.     §  39 1. 

timber  contracted  for;  to  the  other,  the  very  price.  If  I 
am  called  on  now  to  execute  the  agreement,  I  can  only 
specifically  execute  a  portion.  Whereas,  I  am  bound  to  exe- 
cute all.  No  precedent  has  been  cited.  But  indeed  none  is 
necessary.  It  is  a  question  of  principle  ;  and  I  am  clearly 
of  opinion  that  if  I  gave  a  decree  now,  it  would  not  be  a 
specific  execution  of  the  contract,  but  only  a  declaration 
that  there  ought  to  be  a  specific  execution  of  it  hereafter. 
I  must  therefore  leave  the  plaintiff  to  his  remedy  at  law."' 
Plaintiffs  agreed  with  a  railroad  company  to  supply  and  lay 
down  the  rails,  and  erect  the  needful  bridges,  for  which 
they  were  to  be  paid  in  the  bonds  and  stock  of  the  com- 
pany. The  road-bed  not  being  ready  for  the  iron,  nor  the 
whole  of  the  route  located,  the  plaintiffs  had  not  performed 
their  part  of  the  contract.  A  demurrer  to  the  bill,  which 
w^as  filed  to  compel  specific  performance  by  the  company 
of  their  contract,  and  to  restrain  them  from  entering  into 
a  similar  contract  with  others,  was  sustained.*  Where  an 
owner  of  patents  contracted  with  certain  persons  to  form 
with  himself  a  company,  to  which  he  was  to  give  his  ser- 
vices for  two  years,  and  do  his  utmost  to  improve  the 
invention  for  the  benefit  of  the  concern,  and  these  persons 
refused  to  go  forward  with  the  company,  and  the  patentee 
brought  a  suit  for  specific  performance  of  the  agreement, 
it  was  held,  on  demurrer,  that,  as  the  court  could  not  en- 
force against  the  plaintiff  the  stipulations  on  his  part,  he 
could  not  maintain  a  bill  for  performance ;  and  further, 
that  the  court  could  not  enforce  the  contract  by  directing 
the  parties  to  execute  a  deed,  the  agreement  being  to  do 
certain  acts,  and  not  to  execute  covenants  to  do  them.' 

§  391.  Enforcing  contract  by  execution  of  deed. — Where 
a  party  contracts  to  do  something  in  the  future,  without 
agreeing  to  execute  a  deed  to  secure  its  performance,  the 
execution  of  such  a  deed  is  no  performance  of  the  stipula- 


'  Gervais  v.  Edwards,  2  Dr.  &  W.,  80.        '  Fallon  v.  R.R.  Co.,  i  Dillon,  121. 
^  Stocker  v.  Wedderburn,  3  K.  &  J.,  393. 


§  392-  AGREEMENT    TO    BE    ENFORCED.  525 

tion.  And  the  same  is  true  where,  though  it  is  agreed  to 
give  a  deed  or  obHgation,  that  is  not  of  the  substance  of 
the  agreement,  but  merely  incidental.  Thus,  where  there 
was  a  contract  to  construct  a  branch  railway,  which  the 
court  could  not  enforce,  and  also  to  give  a  bond  to  secure 
performance,  the  court  refused  to  decree  the  execution  of 
the  bond.'  But  if  it  be  agreed  to  do  a  thing  and  to  exe- 
cute a  deed  for  that  purpose,  and  the  deed  embraces  the 
executory  part  of  the  contract,  the  agreement  will  be  en- 
forced by  compelling  the  execution  of  the  deed,  notwith- 
standing what  is  to  be  performed  is  future,  and  to  be  done 
from  time  to  time." 

§  392.  A greement  to  be  enforced  in  respect  to  both  parties. 
— Specific  performance  will  not  be  decreed  unless  the  court 
can,  at  the  time,  enforce  the  contract  on  both  sides ;  or,  at 
all  events,  such  part  of  it  as  the  court  can  ever  be  called 
upon  to  enforce.  Thus,  A.  and  B.,  two  adjoining  land 
holders,  entered  into  a  contract  to  change  the  course  of  a 
stream,  agreeing  that  if  any  damage  should  accrue  to  the 
land  of  B.  from  a  dam  which  was  to  be  built,  A.  should 
recompense  him  in  land,  the  quantity  to  be  ascertained  by 
arbitrators.  As  the  court  could  not  enforce  the  terms  of 
the  contract  at  once  in  proesenti,  and  the  whole  agreement 
be  carried  into  effect,  it  refused  to  interfere.'  This  princi- 
ple is  applied  to  marriage  contracts  as  well  as  other  agree- 
ments, though  it  has  been  urged  that  when  the  court  spe- 
cifically executes  a  settlement,  its  interference  should  be  con- 
fined to  limitations  in  favor  of  purchasers,  and  not  be  ex- 
tended to  volunteers.  "  There  is  no  instance  of  decreeing 
a  partial  performance  of  articles.  The  court  must  decree 
all  or  none.  And  where  some  parts  have  appeared  very 
unreasonable,  the  court  have  said,  we  will  not  do  that,  and, 
therefore,  as  we  must  decree  all  or  none,  the  bill  has  been 
dismissed." ' 

'  South  Wales  R.R.  Co.  v.  Wythes,  supra. 

*  Granville  v.  Betts,  19  L.  J.  Ch.,  32.  '  Gervais  v.  Edwards,  supra. 

*  Lord  Hardwicke,  in  Goring  v.  Nash,  3  Atk.,  190.     See  Davenport  v.  Bishop, 
2  Y.  &  C.  C.  C,  451  ;  S.  C,  I  Phil.,  698. 


526     ENFORCEMENT  OF  PART  OF  CONTRACT.   §§  393,  394. 

§  393.  Determining  natui'e  of  co7itract. — The  question 
sometimes  arises  whether  a  contract  is  entire  or  divisible ; 
or,  in  other  words,  what  constitutes  the  whole  contract. 
This  is  a  matter  of  construction,  depending  upon  the  in- 
tention of  the  parties,  as  gathered  from  the  language  used 
and  the  subject  of  the  agreement.' 

§  394.  When  contract  entire. — A  contract  for  the  sale  of 
property  in  one  lot  will  in  general  be  regarded  as  not  di- 
visible. Accordingly,  where  two  undivided  sevenths  of 
land  were  sold  in  this  way,  and  a  good  title  could  only  be 
made  to  one  seventh,  specific  performance  was  refused." 
And  the  purchaser  of  the  whole  of  certain  real  estate  can- 
not be  compelled  to  take  six  undivided  sevenths.  So, 
where  two  tenants  in  common  of  land  entered  into  a  con- 
tract with  the  plaintiff  to  lease  to  him  the  coal  under  it, 
and  the  contract  could  not  be  proved  against  one  of  the 
owners,  the  suit  was  dismissed  against  the  other,  as  he  had 
not  agreed  to  lease  one  share  only  ;  though  it  would  have 
been  different  if  he  had  held  himself  out  and  contracted  as 
the  owner  of  the  whole."  A  contract  to  grade  a  section  of 
a  railroad  line,  and  to  prepare  the  road-bed  for  the  cross- 
ties  and  iron,  in  consideration  of  a  specified  sum  to  be  paid 
from  time  to  time  as  the  work  progresses,  according  to  the 
estimates  of  an  engineer,  is  entire."  S.  entered  into  a  con- 
tract with  a  municipal  corporation  to  furnish  the  materials 
for,  and  construct,  a  sewer,  under  the  direction,  and  to  the 
satisfaction,  of  the  city  surveyor  ;  the  work  to  be  completed 
on  or  before  the  15th  of  October,  at  a  specified  price  a 
running  foot.  The  work  was  not  finished  until  the  14th  of 
November.  It  was  held  that  the  contract  was  entire.'  A 
contract  to  deliver  a  given  number  of  tons  of  coal  at  a  cer- 

'  More  V.  Bonnet,  40  Cal.,  251  ;  Southwell  v.  Beezley,  5  Oregon,  458.  See 
Huey  V.  Grinnell,  50  111.,  179. 

'^  Rofifey  v.  Shatcross,  2  Bro.  C.  C,  118,  n,;  S.  C,  Roffey  v.  Shollcross,  4 
Mad.,  227. 

^  Price  V.  Griffith,  i  De  G.  M.  &  G.,  80. 

*  Cox  V.  Western  Pacific  R.R.  Co.,  44  Cal.,  18. 

■*  Coburn  v.  City  of  Hartford,  38  Conn.,  290. 


395-  EVIDENCE    OF    ENTIRETY    OF    CONTRACT.  527 

tain  price  per  ton  on  board  vessels  during  a  time  stated,  is 
entire,  and  the  purchaser  is  not  bound  to  pay  for  any  of  the 
coal  until  the  whole  is  delivered.'  The  contract  may  be 
entire,  notwithstanding  the  same  kind  of  property  is  bought 
at  different  prices.  An  agreement  for  the  sale  of  two 
bales  of  cotton  when  picked  and  ginned,  one  bale  for  eighty 
cents  a  pound  in  Tennessee  currency,  and  the  other  for 
sixty  cents  a  pound  in  greenbacks,  is  an  entire  contract, 
and  the  seller  is  not  bound  to  deliver  either  bale  until  paid 
for  both.'  The  same  may  be  the  case  where  the  property 
purchased  consists  of  several  kinds,  at  different  prices  :  as 
goods  in  a  ship  ; '  or  land  sold  at  one  price,  and  the  timber 
growling  on  it  at  another." 

§  395.  Evidence  of  entirety  of  contract. — A  party  may 
prove,  from  the  nature  of  the  contract  or  of  the  property, 
or  other  special  circumstances  known  to  both  parties,  that 
the  transaction  was  entire,  forming  one  contract,  although 
there  be  no  express  statement  to  that  effect.'     So  the  par- 

'  Shinn  v.  Bodine,  60  Pa.  St.,  182. 

^  Parker  v.  Bergan,  4  Heiskell,  590.  Two  pieces  of  land  having  been  pur- 
chased by  an  individual  from  the  same  persons,  the  consideration  for  one  of 
w^hich  was  seven  hundred  pounds,  and  for  the  other  three  hundred  pounds,  both 
of  which  were  conveyed  by  a  single  deed,  and  the  purchaser  subsequently 
evicted  from  the  latter  piece,  he  brought  an  action  for  money  had  and  received 
to  recover  the  three  hundred  pounds  he  had  paid,  at  the  same  time  refusing  to 
give  up  the  parcel  of  land  for  which  he  had  paid  seven  hundred  pounds,  and  it 
was  held  that  he  was  entitled  to  recover.  Lord  Alvanley,  Ch.  J.,  said  :  "  If  the 
question  were  how^  far  the  particular  part  of  which  the  title  has  failed  formed  an 
essential  ingredient  of  the  bargain,  the  grossest  injustice  would  ensue  if  a  party 
were  suffered  in  a  court  of  law  to  say  that  he  would  retain  all  of  which  the  title 
was  good,  and  recover  a  proportionable  part  of  the  purchase  money  for  the  rest. 
Possibly  the  part  which  he  retains  might  not  have  been  sold  unless  the  other  part 
had  been  taken  at  the  same  time,  and  ought  not  to  be  valued  in  proportion  to 
its  extent,  but  according  to  the  various  circumstances  connected  with  it.  But  a 
court  of  equity  may  inquire  into  all  the  circumstances,  and  may  ascertain  how 
far  one  part  of  the  bargain  formed  a  material  ground  for  the  rest,  and  may 
award  a  compensation  according  to  the  real  state  of  the  transaction.  In  this 
case,  however,  no  such  question  arises;  for  it  appears  to  me  that,  although  both 
pieces  of  ground  were  bargained  for  at  the  same  time,  we  must  consider  the 
bargain  as  consisting  of  two  distinct  contracts,  and  that  the  one  part  was  sold 
for  three  hundred  pounds  and  the  other  for  seven  hundred  pounds.  It  has  not 
been  suggested  that  they  were  necessary  to  the  occupation  of  each  otner." 
Johnson  v,  Johnson,  3  Bosanquet  &  Puller,  162. 

^  Baldey  v.  Parker,  2  B.  &  C,  37. 

*  Crosse  v.  Lawrence,  9  Hare,  462  ;  Crosse  v.  Keene,  lb.,  465. 

'  Casamajor  v.  Strode,  2  M.  &  K.,  722  ;  Poole  v.  Shergold,  2  Bro.  C.  C,  118. 


528        ENFORCEMENT  OF  PART  OF  CONTRACT.     §  396. 

ties  may  convert  separate  contracts  into  one,  by  agreeing 
for  the  sale  of  several  lots  for  a  given  sum.  Accordingly, 
where  a  person  bought  at  auction  three  lots  of  one  hundred 
shares  each,  and  afterward  received  the  shares,  paid  for 
them,  and  took  a  bill  of  sale  describing  the  transaction  as 
a  sale  of  three  hundred  'shares,  it  was  held  that,  although  as 
each  lot  was  knocked  down  there  was  a  distinct  contract 
for  the  sale  of  one  hundred  shares,  yet  that  the  subsequent 
dealing  proved  that  the  parties  regarded  the  transaction  as 
one  entire  sale  of  three  hundred  shares." 

§  396.  Divisible  contract. — If  property  consists  of  dis- 
tinct parts  of  different  quality — as  a  ship  and  the  freight — 
the  contract  may  be  divisible,  notwithstanding  it  is  all  in- 
cluded in  one  writing,  and  an  entire  sum  is  named." 
Where  a  number  of  articles  are  bought  at  the  same  time, 
and  a  separate  price  agreed  on  for  each,  although  they  are 
included  in  one  instrument  or  conveyance,  yet  the  contract, 
for  sufficient  cause,  may  be  rescinded  as  to  part,  the  price 
paid  be  recovered  back,  and  the  contract  be  enforced  as  to 
the  residue  ;  because,  in  effect,  there  is  a  separate  contract 
for  each  separate  article."  At  law,  when  property  is  sold 
in  separate  lots,  there  is  a  distinct  contract  for  each  lot, 
and  the  buyer  has  a  right  of  action  after  he  has  completed 
the  purchase  of  one  lot'     The  same  is  prima  facie  the  case 

'  Franklyn  v.  Lamond,  4  C.  B.,  637. 

^  Mestaer  v.  Gillespie,  11  Ves.,  621,  629.  ^  Miner  v.  Bradley,  22  Pick.,  45. 

*  Robinson  v.  Green,  3  Mete,  159,  was  an  action  brought  by  the  plaintiff,  as 
auctioneer,  for  services  in  selling  sundry  lots  of  standing  wood  which  was  in 
two  counties,  the  defence  being  that  the  contract  was  entire,  and  the  considera- 
tion, as  to  part,  illegal.  The  court,  per  Shaw,  C.  J.,  said  :  "  The  plaintiff  does 
not  claim  on  an  entire  contract.  The  sale  of  each  lot  is  a  distinct  contract. 
The  plaintiff's  claim  for  a  compensation  arises  upon  each  several  sale,  and  is 
complete  on  such  sale.  If  there  were  an  express  promise  to  pay  hmi  a  fixed 
sum  as  a  compensation  for  the  entire  sale,  it  would  have  presented  a  different 
question.  Where  an  entire  promise  is  made  on  one  entire  consideration,  and 
part  of  that  consideration  is  illegal,  it  may  avoid  the  entire  contract.  But  here 
is  no  evidence  of  a  promise  of  one  entire  sum  for  the  whole  service.  It  is  the 
ordinaiy  case  of  an  auctioneer's  commission  which  accrues  upon  each  entire 
and  complete  sale.  We  do  not  see  how  the  question  can  be  answered  which 
was  put  in  the  argument,  namely  :  Supposing  the  plaintiff  had  stopped,  after 
selling  the  two  lots  lying  in  South  Reading,  which  it  was  lawful  for  him  to  sell, 
would  he  not  have  been  entitled  to  his  commission?     If  he  would,  we  do  not 


§  396. 


DIVISIBLE    CONTRACT.  529 


in  equity,  in  whicii,  as  a  rule,  a  vendor  may  compel  the 
purchaser  of  two  lots  to  complete  his  purchase  of  one,  ' 
though  he  be  not  able  to  make  a  title  to  the  other/ 
Where,  by  the  same  agreement,  A.  agreed  to  sell  land  to 
B.,  and  B.  contracted  to  sell  certain  other  land  to  A.,  the 
transaction  was  held  to  constitute  two  independent  con- 
tracts.' But  cross  contracts  for  the  sale  of  goods  were 
held  to  be  dependent.'     Where  a  party  agreed  to  furnish 

perceive  how  his  claim  can  be  avoided  by  showing  that  he  did  something-  else 
on  the  same  day  which  was  not  malum  in  se,  but  an  act  prohibited  by  law  on 
considerations  of  public  policy.  The  court  are  of  opinion  that  the  plaintiff's 
claim  for  a  quantum  meruit  may  be  apportioned,  and  that  he  is  entitled  to  re- 
cover for  his  services  in  the  sale  of  the  two  lots." 

'  Lewin  v.  Guest,  i  Russ.,  325.     And  see  Buckmaster  v.  Harrop,  7  Ves.,  341 ; 
13  lb.,  456. 

^  Croome  v.  Lediard,  2  M.  &  K.,  251. 

'  Atkinson  v.  Smith,  14  M.  &  W.,  695.  In  McDaniels  v.  Whitney,  38  Iowa, 
60,  the  court  were  equally  divided  in  opinion  with  reference  to  the  following : 
"  Proposition  made  by  me  to  Mr.  McDaniels :  I  hereby  agree  to  give  up  the 
banking  business  in  Atlantic  to  Mr.  McDaniels,  and  the  best  lot  he  can  pick 
now  in  our  town,  providing  he  will  now  build  upon  the  same,  and  become  a  per- 
manent resident  of  our  county,  and  take  sixteen  dollars  and  fifty  cents  per  acre 
for  the  farm  of  three  hundred  and  seventy-one  acres  in  sections  33,  34,  and  28, 
of  township  T] ,  36  as  marked  blue  on  his  plat,  and  give  up  to  said  McDaniels 
my  chance  of  purchasing  the  two  forty-acre  lots  of  which  Judge  Temple  is 
acting  as  agent.  This  proposition  is  not  a  standing  one,  but  to  be  decided 
within  two  days  from  date."  Beck,  Ch.  J.,  and  Day,  J.,  held  that  the  foregoing 
constituted  two  distinct  contracts,  one  of  which  might  be  specifically  enforced 
without  the  other,  while  Miller  and  Cole,  Js.,  maintained  that  it  was  one  entire 
contract.  The  latter  said  :  "  The  proposition,  while  single  in  itself,  yet  contains 
an  agreement  on  the  part  of  Whitney  to  do  four  things,  each  of  which  is  sepa- 
rated from  the  preceding  only  by  a  comma,  and  is  connected  with  the  preceding 
by  the  copulative  conjunction  and.  Mr.  Whitney  by  his  proposition  says  :  I 
hereby  agree  to  give  up  the  banking  business  in  Atlanta  to  Mr.  McDaniels, 
and  the  best  lot  he  can  pick  now  in  our  town,  and  take  sixteen  dollars  and 
fifty  cents  per  acre  for  the  farm  of  three  hundred  and  seventy- one  acres,  and 
g^ve  up  to  said  McDaniels  my  chance  of  purchasing  the  two  forty-acre  lots. 
There  is  no  division  of  this  proposition  into  sentences,  nor  any  specification  of 
the  consideration  the  proposer  is  to  receive  for  each  of  the  four  things  he  pro- 
poses to  do.  The  price  per  acre  for  the  land  is  specified.  But  whether  such 
price  is  above  or  below  its  real  or  market  value  does  not  appear,  either  in  the 
proposition  itself  or  in  the  evidence  in  the  case.  It  may  have  been  much 
above  its  value,  and,  in  the  contemplation  of  the  parties,  equalized  by  the  chance 
of  getting  the  two  forty-acre  tracts.  Or,  it  may  have  been  much  below  its 
value,  and,  in  the  estimation  of  the  parties,  compensated  for  by  taking  the 
banking  business  with  its  burdens  of  doubtful  securities.  At  all  events,  there 
is  nothing  in  the  proposition  itself  which  specifies  the  consideration  to  be  paid 
to  the  proposer  for  each  of  the  four  things  he  agrees  to  do,  nor  for  any  one  of 
them.  The  proposition  further  shows  that  it  was  not  binding  at  once,  and  in 
any  event,  upon  the  proposer  Whitney.  But  it  was  to  be,  and  would  become, 
bmding  upon  him  only  when  it  should  be  accepted  by  McDaniels.  What  was 
McDaniels  to  do  in  order  to  accept  it  and  make  it  binding  upon  Whitney  ?  He 
was  to  pick  the  best  lot,  and  to  build  upon  it,  and  take  the  banking  business, 

34 


530        ENFORCEMENT  OF  PART  OF  CONTRACT.     §  397. 

the  materials  for,  and  do  the  carpenter  work  on,  two  brick 
buildings  then  in  process  of  erection  for  a  specified  sum, 
and  to  turn  the  buildings  over  when  complete,  and  they 
were  accidentally  destroyed  by  fire,  it  was  held  that  the 
contract  was  divisible,  and  that  he  was  entitled  to  recover 
for  materials  furnished  and  work  done/  If  a  contract  is 
divisible,  and  a  part  which  is  legal  can  be  separated  from 
that  which  is  illegal,  the  contract  may  be  enforced  as  to  the 
former/  Two  signatures  by  the  same  person  to  a  subscrip- 
tion paper,  one  in  his  individual  name,  and  the  other  with 
the  addition  of  executor,  are  separate  contracts/ 

§  397.  Performance  in  relation  to  distinct  right. — An 
exception  to  the  rule  that  the  court  will  not  enforce  part  of 
a  contract,  arises,  where,  although  there  cannot  be  a  decree 
as  to  terms  of  the  contract  relating  to  the  future,  yet  the 
plaintiff,  at  the  time  of  bringing  the  suit,  has  a  distinct 
right  as  to  what  has  already  transpired.  Thus,  where  a  con- 
tract having  been  entered  into  for  the  construction  of  a 
railroad,  the  contractors  filed  a  bill  against  the  railroad  com- 
pany in  which  it  was  alleged  that  the  engineer  fraudulently 
withheld  certificates  for  labor  performed,  and  seeking  an 
account  for  work  done,  it  was  held,  on  demurrer,  that, 
although  the  work  was  not  finished,  and  the  court  could 
not  compel  its  completion,  yet  as,  by  the  alleged  acts  of  the 
defendants,  the  plaintiffs  had  been  deprived  of  a  right  per- 
fect in  itself,  they  wxre  entitled  to  relief  as  to  that.'     So,  if 


and  become  a  permanent  resident  of  the  county,  and  pay  sixteen  dollars  and 
fifty  cents  per  acre  for  the  farm,  and  take  the  chance  of  purchasing  the  two 
forty-acre  lots.  He  was  to  do  all  of  these  before  Whitney  would  become  bound 
to  him  to  do  what  he  had  proposed.  McDaniels  could  not  elect  to  take  the 
banking  business  alone,  and  require  Whitney  to  give  it  up.  This  is  too  clear  to 
require  demonstration.  And  if  he  could  not  do  this,  it  is  just  as  clear  that  he 
could  not  require  Whitney  to  do  any  other  one  of  the  several  things  proposed, 
without  himself  doing  all  he  was  required  to  do  by  the  proposition.  And  from 
this  it  must  appear  that  the  contract  is  no  more  divisible  into  two  parts  than 
into  four." 

'  HoUis  V.  Chapman,  36  Texas,  i. 

'  Amot  V.  Pittston  &  Elmira  Coal  Co.,  5  Thomp.  &  Cook,  143  ;  2  Hun  ,  591, 

»  Erie  &  N.  Y.  City  R.R.  Co.  v.  Patrick,  2  Abb.  App.  Decis.,  72. 

*  Waring  v.  Manchester,  Sheffield  &  Lincolnshire  R.R.  Co.,  7  Hare,  482. 


§§  39^,   399-  WHERE    PARTY    IS    IN    DEFAULT.  53 1 

articles  of  partnership  provide  that  the  accounts  shall  be 
made  up  semi-annually,  and  that  one  of  the  members  of 
the  firm  shall  have  a  salary  graduated  according  to  the 
profits  thus  ascertained,  he  may  from  time  to  time  bring  a 
suit  to  compel  an  accounting  pursuant  to  the  agreement, 
although  the  other  terms  of  the  contract  might  be  incapa- 
ble of  specific  performance/ 

§  398.  Enforcing  one  of  several  stipulatioiis. — Specific 
performance  may  be  granted  of  a  contract  which  can  be 
enforced,  notwithstanding  something  in  relation  to  the  sub- 
ject matter  is  to  be  done  afterward  ;  as  an  agreement  for 
the  sale  of  timber,  to  be  cut  down  at  a  subsequent  time, 
and  the  purchase  money  to  be  paid  by  instalments/  Where 
a  railroad  company  agreed  to  make  and  maintain  a  siding 
so  long  as  it  should  be  of  use,  it  was  held  that  the  first  part 
of  the  stipulation  might  be  enforced,  the  question  of  main- 
taining the  siding,  being  a  matter  which  could  be  inquired 
into  when  that  part  of  the  agreement  was  violated/ 

§  399.  Where  party  is  in  default  or  stipulation  is  partly 
honorary,  or  in  the  alternative. — It  has  been  seen,'  that, 
although  where  the  vendor  has  only  part  of  the  interest  he 
has  contracted  to  sell,  he  cannot  compel  specific  perform- 
ance by  the  purchaser,  yet  that  the  latter  may  enforce  the 
contract  against  the  former  to  the  extent  of  the  vendor's 
ability  to  convey,  with  compensation  for  the  deficiency.  So, 
the  court  will  be  reluctant  to  refuse  to  enforce  a  contract,  a 
part  of  which  cannot  be  carried  out  in  consequence  of  the 
default  of  the  party  who  sets  up  this  defence.  Three  rail- 
road companies  entered  into  a  contract  for  a  purchase  and 
amalgamation.  For  the  amalgamation,  an  act  of  Parliament 
was  necessary,  which  could  not  be  obtained,  because  a 
majority  of  the  stockholders  of  one  of  the  companies  was 
opposed  to  the  arrangement.     In  a  suit  relating  to  the  pur- 


'  Ibid.,  496,  per  Wigram,  V.  C.  '  Gervais  v.  Edwards,  2  Dr.  &  W.,  80. 

3  Lytton  V.  Gt.  Northern  R.R.  Co.,  2  K.  &  J.,  394. 
*■  Ante,  §  203.     And  s&q  post,  §  505. 


532        ENFORCEMENT  OF  PART  OF  CONTRACT.     §  399. 

chase,  the  last  mentioned  company  interposed  as  a  defence, 
the  impossibility  of  carrying  out  the  agreement  as  to  the 
amalgamation.  The  court  overruled  the  demurrer,  and 
doubted  whether  the  defendant  company  could  say  to  the 
plaintiffs  that  they  were  not  entitled  to  the  benefit  of  such 
part  of  the  contract  as  the  defendants  could  perform,  be- 
cause the  latter  could  not  without  a  special  act  perform  the 
whole,  when  they  declined  to  apply  to  Parliament  to  give 
them  the  necessary  powers/  When  a  contract  contains 
stipulations  on  the  part  of  the  defendant  which  can  be  en- 
forced, while  other  stipulations,  which  are  wholly  on  the 
plaintiff's  part,  cannot  be  enforced,  the  court  has  no  difficulty 
in  granting  an  injunction  ;  because,  as  soon  as  the  plaintiff 
fails  to  perform  his  part  of  the  agreement,  the  injunction 
will  be  dissolved."  If  two  persons  enter  into  an  agreement 
which  is  partly  legal,  and  partly  honorary,  the  court,  in  the 
absence  of  any  other  objection,  will  specifically  enforce  the 
legal  contract,  and  leave  the  honorary  part  with  the  con- 
science of  the  parties.'  Where  a  contract  is  in  the  alternative, 
so  that  the  parts  are  independent,  specific  performance  may 
be  granted  of  one  part.  Thus,  in  an  agreement  to  grant  a 
lease,  an  option  to  the  lessee  to  purchase,  was  held  so  far 
independent  of  the  agreement  for  a  lease,  that  the  neglect 
of  the  lessee  to  insure,  which  would  have  prevented  his 
suing  for  a  lease,  did  not  prevent  his  suing  on  the  option 
to  purchase.* 

'  Gt.  Western  R.R.  Co.  v.  Birmingham  &  Oxford  Junction  R.R.  Co.,  2  Phil., 
597,  605  ;  Fry  on  Specif.  Perform.,  244.  See  Woodcock  v.  Bennett,  i  Cowen, 
711  ;  Gupton  v.  Gupton,  47  Mo.,  37  ;  Smith  v.  Kelly,  56  Me.,  64. 

"  Stocker  v.  Wedderburn,  3  K.  &  J.,  393,  405. 

'  Corolan  v.  Brabazon,  3  Jon.  &  L.,  200,  213. 

*  Green  v.  Low,  22  Beav.,  625.  See  Hope  v.  Hope,  lb.,  351  ;  S.  C,  26  L.  J. 
Ch.,  417,  425,  as  to  effect  of  performance,  before  suit,  of  part  of  contract  which 
the  court  could  not  enforce. 


CHAPTER   XII. 

DEFECT    IN    SUBJECT    OF    CONTRACT. 

400.  Defect  in  subject  matter  a  ground  for  relief. 

401.  Defect  which  is  patent  not  a  defence. 

402.  Deficiency  or  excess  in  quantity. 

403.  In  case  of  encroachment. 

404.  Destruction  of  property. 

405.  Liability,  or  restriction. 

406.  Defect  of  which  both  parties  are  ignorant. 

407.  Where  property  is  sold  in  gross. 

408.  Sale  with  all  faults. 

§  400.  May  be  objected  to  bill.- — A  substantial  defect  in, 
or  a  misdescription  of  the  subject  matter  of,  the  contract, 
will  constitute  a  good  defence  to  a  suit  for  specific  perform- 
ance. The  plaintiff's  title  may  not  be  disputed  ;  and  yet, 
if  it  relates  to  something  different  from  that  which  the  de- 
fendant contracted  for,  it  is  clear  that  the  plaintiff  has  no 
just  claim  to  the  interposition  of  the  court,  there  being  a 
failure  of  the  very  purpose  and  inducement  of  the  contract.' 
Cases  of  misrepresentation  and  mistake  have  already  been 
considered  ;'  and  it  is  proposed  in  this  place  to  treat  of  such 
defects  as  do  not  involve  those  questions, 

§  401.  Obviotts  defects. — We  have  seen  that  a  defect 
which  the  party  objecting  it  ought  himself  to  have  ascer- 
tained, will  not  excuse  performance.'  Where,  for  instance, 
at  the  time  of  entering  into  a  contract  of  purchase,  the  ven- 
dee might  by  the  exercise  of  diligence  have  known  that 
there  was  a  subsisting  right  of  dower  in  the  property,  a  court 
of  equity  will  not  relieve  him,  but  he  will  be  left  to  his  legal 


1  Where  a  vendee  of  land  upon  receiving  a  bond  for  title  gives  a  note  therefor 
which  shows  on  its  face  that  it  was  so  given,  an  assignee  or  holder  of  the  note 
cannot,  in  case  of  a  deficiency,  recover  on  the  note,  though  he  took  it  previous  to 
its  falling  due.     Howard  v.  Kimball,  65  N.  C,  175. 

2^«/^,  Ch,  X.  ^Ante,%z^T. 


534  DEFECT    IN    SUBJECT    OF    CONTRACT.  §  402. 

remedy/  As  already  stated,  in  treating  of  misrepresenta- 
tion,' the  same  distinction  holds  good  in  suits  for  specific 
performance,  as  in  actions  at  law  on  a  warranty,  wnth  refer- 
ence to  defects  wiiich  are  open  and  visible  or  patent,  and 
such  as  are  latent,  the  former  not  being  a  ground  of  defence. 
Therefore,  where  a  man  purchased  a  meadow  with  a  road 
around  it  and  a  right  of  way  across  it,  which  were  not  re- 
ferred to  in  the  description,  and  he  refused  to  complete  the 
contract  on  account  of  this  defect,  specific  performance  was 
decreed  with  costs.'  A  m^'nutc  examination  of  the  prop- 
erty for  defects,  is  not  required  of  the  purchaser;  and  a 
defect  will  be  deemed  latent,  unless  it  is  an  obvious  and  un- 
mistakable object  of  sense.  Where  the  purchaser  of  upper 
land  objected  to  the  existence  of  the  right,  granted  with  the 
lower  land,  to  go  on  to  the  upper  land,  take  water  from  a 
spring,  and  cut  and  cleanse  gutters  for  the  conveyance  of 
water  to  wells  on  the  lower  land,  it  was  held  that  he  had 
no  such  knowledge,  or  notice,  as  precluded  the  defence, 
although  it  was  proved  that  he  had  resided  in  the  neighbor- 
hood for  a  long  time,  was  familiar  with  the  property,  and, 
in  passing,  had  constantly  seen  some  of  the  wells  on  the 
lower  land  supplied  from  the  upper  land.* 

§  402.  Erro7'-  in  quantity  of  land  sold. — Where  the  con- 
tract is  such  as  entitles  a  person  to  a  conveyance  of  real 
estate,  he  will  not  be  compelled  to  receive  one  that  is  de- 
fective.' If  the  owner  of  land  sells  it  on  a  description 
given  by  himself,  he  is  bound  in  equity  to  make  good  that 
description,  and  he  is  liable  for  any  variance  in  a  material 
respect,  although  the  variance  be  caused  by  a  mistake."     In 

'  Greenleaf  V.  Queen,  i  Pet.,  138.  -  Ante,  §  317. 

^  Oldfield  v.  Round,  5  Ves.,  508.  See  Pope  v.  Garland,  4  Y.  &  C.  Ex.,  404  ; 
Ellard  v.  Lord  Llandaff,  i  Ball  &  Beatty,  241. 

■*  Shackleton  v.  Sutcliffe,  i  De  G.  &  Sm.,  609.  There  is  no  doubt  that  the  ven- 
dor, if  he  knows  of  even  patent  defects  in  the  subject  of  the  contract,  is  morally- 
bound  to  inform  the  purchaser  of  them,  though  this  doctrine  has  been  denied 
with  some  show  of  plausibility.  It  is,  however,  what  has  been  termed  a  duty  of 
imperfect  obligation. 

^  Watts  V.  Waddle,  i  McLean,  200 ;  Sohier  v.  Williams,  i  Curtis,  479;  Brown 
V.  Cannon,  10  111.,  174;  Richmond  v.  Gray,  3  Allen,  25;  St.  Mary's  Church  v. 
Stockton,  8  N.  J.  Eq.,  525  ;  Winne  v.  Reynolds,  6  Paige  Ch.,  407. 

"  McFerran  v.  Taylor,  3  Cranch,  268. 


§  402.  ERROR    IN    QUANTITY    OF    LAND    SOLD.  535 

equity,  where  the  vendor  can  convey  only  an  insignifi- 
cant and  immaterial  part  of  what  is  bargained  for,  a 
.vendee  will  not  be  compelled  to  take  that,  even  at  a 
corresponding  reduction  of  the  price.  But  if  the  ven- 
dor can  substantially  perform  his  contract,  and  the  part 
as  to  which  he  cannot  perform  is  of  such  a  character 
as  to  admit  of  compensation  being  made  to  the  vendee 
for  the  failure,  the  court  will  decree  specific  perform- 
ance of  the  contract  so  modified.'  A  deficiency  of  one- 
third  in  the  quantity  of  land  would  entitle  the  pur- 
chaser to  rescind  the  contract,  or  to  an  abatement  of  the 
price."  Where  there  was  a  deficiency  of  three  hundred  and 
fifty-five  acres  in  a  tract  described  as  containing  sixteen 
hundred  and  seventy  acres,  more  or  less,  it  was  held  that 
the  purchaser  was  entitled  to  an  abatement.'  The  same 
was  held  where  the  land  was  described  as  containing  one 
thousand  acres,  more  or  less,  when  it  contained  in  fact  only 
six  hundred  acres.*  Land,  sold  at  auction,  was  advertised 
as  a  freehold  estate  consisting  of  one  hundred  and  eighty- 
six  acres,  forty-five  acres  of  which  were  described  as  a  farm, 
and  the  rest  as  a  park.  It  afterward  appeared  that  two 
acres  in  the  centre  of  the  park  were  not  freehold  property, 
but  land  held  at  will.  In  a  suit  for  specific  performance. 
Lord  Thurlow  remarked  that  where  property  was  sold  at 
auction,  it  was  difficult  to  state  all  the  little  particulars  rela- 
tive to  the  quantity,  title,  and  situation,  so  as  not  to  call  for 

'  Winne  v.  Reynolds,  supra  ;  Shaw  v.  Vincent,  64  N.  C,  690  ;  Howard  v. 
Kinaball,  65  lb.,  175  ;  post,  §  502.  In  Drevve  v.  Corp,  9  Yes.,  368,  Sir  William 
Grant,  M.  R.,  said  that  there  was  no  instance  of  compelling  a  man  who  had 
contracted  for  a  freehold  to  take  a  leasehold  estate;  that  where  a  party  gets 
substantially  that  for  which  he  contracts,  any  small  difference  may  be  remedied 
by  compensation  ;  but  not  where  it  extends  to  the  whole  estate.  See  Hulmes  v. 
Thorpe,  i  Halst.  Ch.,  415.  A  court  of  equity  will  weigh  the  object  and  induce- 
ment of  the  purchaser,  and  look  to  the  merits  and  substantial  justice  of  each 
case.  It  is  not  every  defect  in  the  subject  sold,  or  variation  from  the  descrip- 
tion, that  will  avail  to  discharge  the  purchaser  from  his  contract.  If  he  gets 
substantially  what  he  bargained  for,  he  must  take  a  compensation  for  the  defi- 
ciency.    Weems  v.  Brewer,  2  Har.  &  Gill,  390. 

-  Wilcoxon  v.  Calloway,  67  N.  C,  463. 

^  Gentry  v.  Hamilton,  3  Ired.  Eq.,  376, 

*  Leigh  V.  Crump,  i  Ired.  Eq.,  299.*   And  see  Jacob  v.  Locke,  2  lb.,  86. 


536  DEFECT    IN    SUBJECT    OF    CONTRACT.  §  4O3. 

some  consideration  when  the  bargain  came  to  be  executed  ; 
and,  in  granting  a  decree,  he  referred  it  to  a  master  to  de- 
termine what  deduction  from  the  price  ought  to  be  al- 
lowed.' Where  the  difference  between  the  property  sold 
and  the  description  of  it  is  an  excess  of  quantity,  the  ven- 
dor cannot  enforce  the  contract  against  an  unwilling  ven- 
dee. For,  "it  is  unnecessary  for  a  man,  who  has  con- 
tracted to  purchase  one  thing,  to  explain  why  he  refuses  to 
accept  another."* 

§  403.  Encroachment  on  land  sold. — The  defect  com- 
plained of  may  arise  from  an  encroachment.  Where  a  lot 
conveyed  by  warranty  deed  free  of  incumbrance  was  after- 
ward found  by  the  purchaser  to  be  encroached  upon  by  a 
building,  it  was  held  that  he  was  entitled  to  recover  back 
what  (ten  per  cent.)  he  had  paid.'     Real  estate,  consisting 

^  Calcraft  V.  Roebuck,  i  Ves.  Jr.,  221.  "The  American  courts  have  shown 
more  unwillingness  than  the  English  to  encourage  litigation  about  the  amount 
of  the  price  by  reason  of  a  variation  in  the  quantity  of  land  agreed  to  be  con- 
veyed, without  clear  evidence  that  the  quantity  was  made  an  essential  element 
of  the  bargain."  Gray,  J.,  in  Noble  v.  Googins,  99  Mass.,  231,  See  Mann  v. 
Pearson,  2  Johns,  37.  If  the  vendor's  covenant  be  broken,  the  vendee  has  sev- 
eral remedies.  He  may  rescind  the  contract,  or,  at  his  election,  bring  an  action 
at  law  to  recover  damages,  or  institute  a  proceeding  in  equity  to  enforce  specific 
performance.  But  if  the  vendor  cannot  convey  the  whole  of  the  subject  matter 
of  the  contract,  equity  will  not  compel  the  vendee  to  perform  pro  tanto.  Thus, 
where  tenants  in  common  had  contracted  for  the  sale  of  their  estate,  and  one  of 
them  died,  it  was  held  that  the  survivors  could  not  force  the  purchaser  to  take 
their  shares,  but  that  he  might  compel  the  survivors  to  convey  their  shares, 
although  the  contract  could  not  be  enforced  against  the  heirs  of  the  deceased 
tenant  in  common.  Atty.  Genl.  v.  Day,  i  Ves.  Sen.,  218;  S.  P.,  Clarke  y. 
Reins,  12  Gratt.,  98. 

^  Ayles  V.  Cox,  16  Beav.,  23.  See  Stanton  v.  Tattersall,  i  Sm.  &  G.,  529.  It 
is  a  rule,  both  at  law  and  in  equity,  that  a  plaintiff  may  be  permitted  to  recover 
a  part  only  of  what  he  claims.  In  Graham  v.  Gates,  6  Har.  &  Johns,  229,  a 
bill  was  filed  for  specific  performance  of  a  contract  for  the  purchase  of  land 
known  as  "  Hempstead  Hill."  The  evidence  established  the  complainant's 
right  to  a  part  only  of  the  land,  and  relief  was  decreed  him  to  that  extent.  In 
Drurj'  V.  Conner,  6  Har.  &  Johns,  488,  a  conveyance  of  land  known  as  "  Oliver's 
Neck  "  was  claimed.  The  proof  entitled  the  complainant  to  an  undivided  fourth 
part  only,  and  it  was  decreed  him.  So,  in  Bogan  v.  Daughdrill,  51  Ala.,  312, 
which  was  a  suit  for  the  specific  performance  of  a  contract  for  the  sale  of  four 
hundred  acres  of  land,  the  complainant  was  found  entitled  to  eighty  acres  only, 
and  it  was  decreed  accordingly.  And  see  Mortlock  v.  Buller,  10  Yes.,  315; 
Wood  v.  Griffith,  i  Swanst.,  54 ;  Milligan  v.  Cook,  16  Ves.,  i  ;  Graham  v. 
Oliver,  3  Beav.,  124;  Nelthorpe  v.  Holgate,  i  Coll.  C.  C,  203;  Waters  v. 
Travis,  9  Johns,  464  ;  Morse  v.  Elmendorf,  1 1  Paige  Ch.,  288  ;  Napier  v.  Dar- 
lington, 70  Pa.  St.,  64;  Schiffer  v.  Pruden,  64  N.  Y.,  47  ;  White  v.  Dobson,  17 
Gratt.,  262. 

*  King  v.  Knapp,  59  N.  Y.,  462. 


§  404-  DESTRUCTION    OF    SUBJECT    MATTER.  537 

of  two  lots,  numbered  42  and  43,  was  sold  at  auction  in  one 
parcel,  with  the  understanding  on  the  part  of  the  auction- 
eer and  purchaser  that  lot  43  w^as  vacant,  whereas,  in  fact, 
buildings  on  lot  42  projected  on  lot  43  about  twenty 
inches.  The  object  of  the  vendee  in  making  the  purchase 
was  to  build  a  house  on  lot  43  twenty-two  feet  wide,  leav- 
ing an  alley  three  feet  wide  ;  but,  in  consequence  of  the  en- 
croachment, he  w^ould  be  compelled  to  make  his  house  two 
feet  narrower.  It  was  held  not  such  a  material  defect  in 
the  subject,  or  variation  from  the  terms  of  the  description 
at  the  sale,  as  would  permit  the  purchaser  to  abandon  his 
contract  ;  but  that  as  the  vendor  had  stated  that  the  build- 
ings were  on  lot  42,  the  encroachment  w^as  not  such  a 
patent  and  obviously  visible  circumstance  as  to  conclude 
the  purchaser  from  compensation.' 

§  404.  Accidental  destruction  of  subject  matter  of  con- 
tract.— If  the  owner  of  a  house  and  lot  agrees  to  sell  the 
property,  and  to  execute  and  deliver  a  deed  of  the  same 
upon  the  payment  of  a  certain  sum,  and  before  the  pur- 
chase money  is  all  paid,  the  house  is  accidentally  destroyed 
by  fire,  the  vendor  cannot  recover  or  retain  any  part  of  the 
purchase  money.'  Such  a  case  differs  from  that  in  which 
a  lessee  is  held  liable  to  pay  rent,  or  make  repairs  accord- 
ing to  his  covenants,  notwithstanding  the  destruction  of 
the  buildings  by  fire  or  other  accident  during  the  term. 
There,  the  lessor,  by  the  execution  and  delivery  of  the 
lease,  has  performed  the  contract  on  his  part ;  and  the  les- 
see, having  become  the  owner  of  the  leasehold  interest, 
incurs  the  same  risk  of  fire  or  other  casualty  as  any  other 
owner  of  property,  and  is  not  excused  from  the  fulfilment 
of  his  express  covenants.  But  neither  party  can  rescind  a 
written  contract  for  the  purchase  of  land  in  case  of  the 

'  King  V.  Bardeau,  6  Johns  Ch.,  38. 

^  Wells  V.  Caiman,  107  Mass.,  514  ;  Thompson  v.  Gould,  20  Pick.,  134 ;  Bacon 
V.  Simpson,  3  M.  &  W.,  78.  After  an  executory  contract  for  the  conveyance  of 
real  estate  has  been  entered  into  by  the  execution  of  a  bond  for  title  and  notes 
for  the  purchase  money,  the  property  is  at  the  risk  of  the  purchaser,  and  if  it  is 
destroyed  by  fire,  it  is  his  loss.     Snyder  v.  Murdock,  51   Mo.,  175. 


53^  DEFECT    IN    SUBJECT    OF    CONTRACT.  §§  405,  406. 

accidental  destruction  of  the  buildings  by  fire,  if  they  were 
not  a  principal  inducement  to  the  purchase.'  Where  the 
enjoyment  of  water,  by  the  vendee,  conveyed  in  pipes  from 
a  spring  owned  by  the  vendor,  was  a  great  inducement  to 
the  purchase,  and  the  absence  of  water  would  very  much 
lessen  the  value  of  the  property,  the  destruction  of  the 
privilege  after  the  sale  and  before  conveyance,  was  held  a^ 
good  ground  for  avoiding  the  contract' 

§  405.  Prope7'ty  sold  subject  to  liability  or  rest7''iction. — 
The  defect  may  consist  of  some  liability  of  which  the  other 
party  has  no  knowledge,  or  of  some  right  restricting  the 
purchaser's  absolute  enjoyment  of  the  property,  of  which 
the  vendor  cannot  procure  a  release,  and  which  will  there- 
fore avoid  the  sale  as  against  the  purchaser.'  If  the  ven- 
dor's interest  be  determinable,  the  fact  should  be  stated  : 
as  that  an  annuity  is  redeemable  ;  *  or  that  the  property  is 
liable  to  be  taken  for  public  use,  under  a  statute.'  Where 
the  vendor  of  leasehold  property  had,  previous  to  the  sale, 
received  notice  from  his  landlord  of  re-entry  for  neglect  to 
make  repairs,  and  did  not  apprise  the  purchaser  of  this 
notice,  who,  however,  knew  that  the  repairs  had  not  been 
made,  the  contract  was  held  void  at  the  suit  of  the  pur- 
chaser who  had  been  evicted.'  But  the  vendor  of  a  lease 
need  not  inform  the  purchaser  that  the  covenants  are  un- 
commonly stringent ;  it  being  the  duty  of  the  latter  to 
ascertain  the  character  of  the  lease  for  himself.' 

§  406.  Defect  unknown  to  both  parties. — A  defect  of 
which  both  the  vendor  and  vendee  have  no  knowledge  at 
the  time  of  the  contract,  will  not  be  a  defence  to  a  suit  for 
specific  performance,  unless  the  defect  is  such  as  ought  to 
have  been  known  to  the  vendor.*     A  person,  having  in- 

'Bautz  V.  Kuvvorth,  i  Montana,  133.  ^  Durett  v.  Simpson,  3  Monroe,  517. 

'Burnell  v.  Brown,  i  J.  &  W.,  172;  Gibson  v.  Spurrier,  Peake's  Ad.  Ca.,  50; 
Seaman  v.  Vawdrey,  16  Ves.,  393  ;  Forteblow  v.  Shirley,  cited  2  Svvanst.,  223. 
*  Coverley  v.  Burrell,  Sug.,  299.  ^  Ballard  v.  Way,  i  M.  &  W„  520. 

'  Stevens  v.  Adamson,  2  Stark,  422. 

'  Hall  V.  Smith,  14  Ves.,  426  ;    Pope  v.  Garland,  4  Y.  &  C.  Ex.,  394  ;  Patter- 
son V.  Long,  6  Beav.,  590. 

"  Lucas  V.  James,  8  Hare,  418.     And  see  Parkinson  v.  Lee,  2  East.,  314. 


§  407-    SALE  WITHOUT  STATEMENT  OF  QUANTITY.      539 

spected  land  in  company  with  the  agent  of  the  owner,  who 
stated  that  it  contained  between  forty  thousand  and  fifty 
thousand  square  feet,  contracted  to  buy  it  at  an  agreed 
price  per  foot.  The  land  being  afterward  found  to  contain 
sixty-six  thousand  square  feet,  the  purchaser  refused  to 
take  it  on  account  of  the  excess ;  but  it  was  held  that  he 
was  not  entitled  to  recover  back  the  purchase  money.'  An 
uncertainty  in  the  subject  matter  of  a  sale,  the  description 
being  correspondingly  uncertain,  will  of  course  afford  no 
ground  for  relief  ;  as  where  land  sold  is  described  in  gen- 
eral terms  as  part  freehold  and  part  leasehold,  and  the  pre- 
cise boundary  between  the  freehold  and  leasehold  portions 
cannot  be  ascertained.'' 

§  407.  Sale  without  statement  of  quantity.  —  If  real 
estate  is  sold  in  gross,  and  not  as  a  designated  quantity,  a 
party  cannot  be  relieved  either  for  an  excess  or  deficiency 
afterward  discovered.'  Where  a  lot  of  land,  sold  at  auction, 
was  described  as  being  in  a  certain  inclosure,  and  as  con- 
taining "  nearly  two  acres,"  specific  performance  w^as  de- 
creed against  the  purchaser,  although  the  lot  in  fact  con- 
tained only  one  acre  and  twelve  rods.*  Of  course,  if  a 
farm  be  purchased  by  its  usual  designation,  without  men- 
tion of  the  quantity,  or  reference  to  a  plat,  or  any  stipula- 
tion on  the  part  of  the  vendor,  and  there  is  a  less  number 
of  acres  than  the  vendee  supposed,  there  is  no  ground  for 
any  deduction  for  deficiency  in  quantity  ;  though  it  would 
be  otherwise  if  the  purchaser  should  be  deceived  by  the 
representations  of  the  vendor.'  A  description  of  land  by 
boundaries,  or  the  words  more  or  less,  or  an  equivalent  ex- 
pression, will  control  a  statement  as  to  the  quantity  of  land, 
or  the  length  of  a  boundary,  so  that  neither  party  will  be 


^  Dickinson  v.  Lee,  106  Mass.,  557. 

^  Monro  v.  Taylor,  3  M'N.  &  G.,  713.  See  Crosse  v.  Lawrence,  9  Hare,  462 ; 
Crosse  v.  Keene,  lb.,  469. 

^  Gillilan  v.  Hinkle,  8  W.  Va.,  262,  It  is  otherwise,  where  the  sale  is  by  the 
acre.     Wilson  v.  Randall,  d'j  N.  Y„  338. 

*  Foley  V.  M'Keown,  4  Leigh,  678.  ^  Kent  v.  Carcaud,  17  Md.,  291. 


540  DEFECT    IN    SUBJECT    OF    CONTRACT.  §  408. 

relieved  by  reason  of  a  deficiency  or  surplus,  unless  the 
variation  is  so  great  as  to  give  rise  to  the  presumption  of 
fraud  or  gross  mistake.' 

§  408.  Sale  subject  to  any  defect. — Although  when  prop- 
erty is  purchased  with  all  faults,  the  contract  is  binding  up- 
on the  purchaser  even  when  there  are  latent  defects  not  dis- 
coverable by  him  ;'  yet  such  a  contract  will  not  protect  the 
vendor  when  he  adopts  measures  to  conceal  a  defect,  or  to 
withdraw  the  purchaser's  attention  from  it.  As,  moving  a 
vessel  off  her  ways,  where  she  lies  dry,  into  the  water,  to 
conceal  her  worm-eaten  bottom  and  broken  keel;'  or  pur- 
posely plastering  and  papering  over  a  defect  in  the  main 
wall  of  a  house  about  to  be  sold.'  Where,  however,  the 
owner,  being  aware  of  a  nuisance  which  rendered  his  house 
unfit  to  live  in,  did  not  tell  his  agent  of  its  existence,  and 
the  latter,  upon  being  asked  by  the  proposed  lessee  whether 
there  was  any  objection  to  the  house,  replied  in  the  nega- 
tive, it  was  held  no  defence  to  an  action  at  law  for  a  breach 
of  the  contract  on  the  part  of  the  lessee."  But  in  equity, 
the  decision  would  unquestionably  have  been  the  other  way, 
for  "  a  vendor  cannot,  although  the  estate  be  sold  subject 
to  all  faults,  rely  on  the  aid  of  a  court  of  equity,  if  he 
(designedly)  omit  to  disclose  a  latent  defect  which  the  pur- 
chaser has  no  means  of  ascertaining."' 

'  Stebbins  v.  Eddy,  4  Mason,  414;  Stull  v.  Hurrt,  9  Gill,  446  ;  Ketchum  v. 
Stout,  20  Ohio,  453;  Marvin  v.  Bennett,  8  Paige  Ch.,  312 ;  Morris  Canal  Co.  v. 
Einmett,  9  lb.,  168  ;  Faure  v.  Martin,  3  Seld.,  210;  Noble  v.  Goog-ins,  99  Mass., 
231.  See  Winch  v.  Winchester,  i  Yes.  &  B.,  375;  Townshendv.  Stangroom,  6 
Ves.,  341 ;  Hill  v.  Buckley,  17  lb.,  394.  See  a7tte,  §  370.  Where  land  sold  was 
described  as  containing  one  hundred  acres  more  or  less,  it  was  held  that  the 
purchaser  was  not  entitled  to  an  abatement,  although  there  was  a  deficiency  of 
thirty-six  acres.     Hudson  v.  Hudson,  64  Ga.,  513. 

^  Baglehole  v.  Walters,  3  Camp,  154;  Pickering  v.  Dowson,  4  Taunt.,  779, 
overruling  Mellish  v.  Motteux,  Peake,  115. 

^  Schneider  v.  Heath,  3  Camp,  506. 

^  Ibid.  See  Shirley  v.  Stratton,  i  Bro.  C.  C,  440,  «  ;  Small  v.  Attwood,  You., 
490.  The  above-mentioned  examples  savor  of  fraud.  See  Early  v.  Garrett,  9 
B.  &  C,  928 ;  Springwell  v.  Allen,  2  East.,  448,  )i. 

"  Cornfoote  v.  Fowke,  6  M.  &  W.,  358.  And  see  Wilson  v.  Fuller,  3  Ad.  &  E. 
N.  S.,  68  ;  3  Gale  &  D.,  570. 

"  Dart's  V.  &  P.,  40,  41. 


CHAPTER  XIII. 

ABSENCE,    OR    INSUFFICIENCY    OF    TITLE. 

409.  Vendor  bound  to  give  a  good  title. 

410.  Proof  required  of  vendor  as  to  title. 

411.  Purchaser  not  compelled  to  take  a  doubtful  title. 

412.  What  deemed  a  doubtful  title. 

413.  Where  the  title  has  been  questioned,  or  decided  against. 

414.  Implied  understanding  as  to  title. 

415.  Unimportant  defects  disregarded. 

416.  In  case  of  presumptive  evidence  of  title. 

417.  Where  there  is  suspicion  of  fraud. 

418.  Where  the  purchaser  is  in  possession  under  a  conveyance. 

419.  Right  of  vendee  to  time  for  investigation  of  title. 

420.  Delay  of  vendor  in  making  title. 

421.  Where  the  vendee  knows  at  the  time  of  the  contract  that  the  title  is  de- 

fective. 

422.  Defect  of  title  as  to  part  of  subject  matter  of  contract. 

423.  When  contract  enforced  with  indemnity.     ' 

424.  Waiver  of  defects. 

§  409.  Right  of  vendee  to  a  good  title. — A  title  to  real 
estate,  being  the  means  by  which  the  owner  of  land  has  the 
just  possession  of  his  property,'  it  follows  that  when  a  per- 
son undertakes  to  sell  property  to  which  he  has  not  in  fact  a 
good  title,  as  it  is  out  of  his  power  to  perform  what  the  pur- 
chaser bargained  for,  the  latter  is  released  from  obligation 
to  fulfil  on  his  part.  Specific  performance  will  not  be  de- 
creed in  favor  of  a  vendor  who,  at  the  time  of  the  contract, 
was  not  the  owner  of  the  property,  or  had  not  the  power  to 
become  the  owner  by  legal  or  equitable  proceedings ; '  or 

'  2  Blk.  Com.,  195. 

^  Lay  v.  Huber,  3  Watts,  367  ;  Pipkin  v.  James,  i  Humph.,  325  ;  Hurley  v. 
Brown,  98  Mass.,  545  ;  Morgan  v.  Morgan,  2  Wheat.,  290 ;  Garnett  v.  Macon, 
2  Brock,  185  ;  Tomlin  v.  McChord,  5  J.  J.  Marsh,  135  ;  Owings  v.  Baldwin,  8 
Gill,  337  ;  Fitzpatrick  v.  Featherstone,  3  Ala.,  40  ;  Stevenson  v.  Buxton,  1 5  Abb. 
Pr.,  352  ;  Nicol  v.  Carr,  35  Pa.  St.,  381.  Although  the  land  was  sold  under  a 
decree  of  the  court,  yet  if  there  is  a  defect  in  the  title  of  which  the  purchaser 
was  not  informed,  he  will  not  be  compelled  to  take  the  property  unless  a  good  title 
can  be  given.  Coster  v.  Clarke,  3  £dw.  Ch.,  428.  In  general,  a  purchaser  of  land 
will  not  be  compelled  to  pay  any  portion  of  the  purchase  money,  before  a  title 
is  made  out.     Birdsall  v.  Waldron,  2  Edw.  Ch.,  315  ;  or  until  proper  assurances 


542  ABSENCE,    OR    INSUFFICIENCY    OF    TITLE.  §  4O9. 

where  the  vendor,  since  the  contract,  has  conveyed  the  land 
to  a  third  person  for  a  valuable  consideration  without  no- 
tice; '  or  mortgaged  the  property."  If  the  vendor  has  not 
the  title,  or  the  means  of  obtaining  it,  neither  party  can,  of 
course,  enforce  the  contract.  A  person  who  has  contracted 
to  take  shares  in  a  company,  to  be  allotted  to  him,  cannot 
have  specific  performance,  if  all  of  the  shares  have  been 
previously  allotted  to  others.'  So,  if  a  contract  is  depend- 
ent upon  the  valuation  or  approval  of  a  certain  person  who 
dies  before  acting,  as  the  contract  has  become  impossible,  a 
suit  for  specific  performance  will  be  dismissed."     But  if, 

as  to  the  title  are  given  by  the  vendor.  Shreck  v.  Pierce,  3  Iowa,  350.  A  suit 
having  been  brought  by  a  vendor  against  a  purchaser  for  specific  performance, 
and  an  inquiry  directed  as  to  the  title,  which  resulted  in  a  certificate  that  a  good 
title  had  not  been  deduced,  the  plaintiff  was  ordered  to  repay  to  the  defendant 
the  deposit  money,  together  with  interest  and  costs  of  suit.  Turner  v.  Marriott, 
L.  R.  3,  Eq.  744.  When  the  vendor  falsely  and  fraudulently  represents  that  he 
has  an  absolute  title,  which  representation  is  relied  on  by  the  purchaser,  the  col- 
lection of  the  purchase  money  will  be  enjoined  until  the  title  shall  have  been 
made  good.  Hinkle  v.  Margerum,  50  Ind.,  240.  See  Davis  v.  Perkins,  40  Iowa, 
82.  The  meaning  of  specific  performance  is,  that  there  shall  be  conveyed  what 
the  vendor  has  contracted  to  sell  to  the  purchaser.  But  although  the  vendor 
may  have  entered  into  a  contract  that  he  shall  not  be  bound  to  produce  a  tide, 
yet  the  terms  of  the  contract  may  be  such,  that  if  it  appears  that  he  has  no  title, 
specific  performance  will  not  be  decreed.  If  no  provision  be  made  in  the  con- 
tract for  a  covenant  to  be  inserted  in  the  deed,  equity  will  not  for  that  reason  en- 
force specific  performance,  unless  the  vendee  expressly  assumes  the  risk  as  to 
title.  Bates  v.  Delavan,  5  Paige  Ch.,  299;  Chambers  v.  Tulane,  9  N.  J.Eq.,  146. 
Where,  however,  on  a  bill  for  specific  performance  of  an  agreement  to  purchase 
certain  lands,  "the  seller  only  to  produce  a  title  from  his  vendor,"  it  appeared 
that  the  plaintiff,  at  the  instance  of  the  defendant,  had  purchased  all  the  estate, 
right,  title,  and  interest,  in  the  said  lands,  from  one  of  four  reputed  ownei-s,  it 
was  held  that  the  defendant  could  not  show,  aliunde^  that  the  plaintiff's  vendor 
had  no  title,  and  specific  performance  was  decreed.  Hume  v.  Pocock,  L.  R.  i, 
Eq.  423;  Affd.,  L.  R.  i,  Ch.  379. 

'  Shields  v.  Trammill,  19  Ark.,  51  ;  Ferrier  v.  Buzick,  2  Iowa,  126;  Bruegge- 
man  v.  Jurgensen,  24  Mo.,  87.  A  purchaser  from  a  person  holding  the  legal 
title,  for  valuable  consideration,  without  notice  of  outstanding  equities,  takes  it 
divested  of  such  equities.  Farmer's  Nat.  Bk.  v.  Fletcher,  44  Iowa,  252.  Where 
the  owner  of  property  having  contracted  to  sell  it  to  one  person,  afterward  sold 
and  conveyed  it  for  a  valuable  consideration  to  another  person  who  had  no  no- 
tice of  the  former  contract,  it  was  held  that  the  original  purchaser  was  not  en- 
titled to  specific  performance  ;  it  being  out  of  the  power  of  the  vendor  to  fulfil 
the  contract.  Denton  v.  Stewart,  i  Cox,  258  ;  Greenawayv.  Adams,  12  Ves.,  395. 
If  the  second  purchaser  had  notice  of  the  first  sale,  he  would  be  bound  to  make 
it  good.  Potter  v.  Sanders,  6  Hare,  i.  Where  a  husband  acts  as  his  wife's 
agent  in  purchasing  property  for  her,  his  notice  and  knowledge  that  the  property 
was  previously  sold  to  another  person,  will  be  regarded  as  notice  to  and  knowl- 
edge of  the  wife.     Hensler  v.  Sefrin,  19  Hun.,  564. 

'  Huber  v.  Burke,  1 1  Serg.  &  Rawle,  238.    •*  Ferguson  v.  Wilson,  L.  R.  2,  Ch.  T], 

*  Frith  V.  Midland  R.R.,  L.  R.  20,  Eq.  238. 


§  4IO.  DUTY    OF    VENDOR    TO    GIVE    A    TITLE.  543 

although  the  vendor  has  not  a  clear  title,  he  has  the  means  of 
obtaining  it,  and  is  ready  and  willing  to  do  so,  and  the  pur- 
chaser refuses  to  complete,  he  cannot  recover  back  what  he 
has  already  paid/  Where  land  has  been  sold  for  taxes,  the 
owner  has  the  means  to  perfect  the  title,  and  the  vendee  may 
be  compelled  to  take  it/  Before,  however,  the  vendor  can 
obtain  a  decree  for  specific  performance,  he  must  make  a 
case  showing  a  moral  certainty  that  the  purchaser  will  re- 
ceive such  a  title  as  he  has  contracted  for/  Two  parcels 
of  land  were  embraced  in  an  entire  contract  of  sale,  one  of 
which  was,  in  fact,  owned  by  the  vendor's  wife,  who  was  not 
a  party  to  the  contract,  nor  referred  to  in  it ;  but  the  land 
was  described  as  the  property  of  the  husband.  The  vendee 
was  put  into  possession  ;  but,  before  a  conveyance  was  exe- 
cuted, the  husband  died.  A  suit  for  specific  performance 
having  been  brought  by  the  widow  and  children,  it  was  held 
that  the  contract  could  not  be  enforced  by  them  ;  and  the 
purchaser  consenting  to  have  the  contract  rescinded,  an 
order  was  entered  to  that  effect' 

§  410.  Duty  of  vendor  to  give  a  title. — The  evidences  of 
his  title  being  matters  peculiarly  within  the  knowledge  of 
the  vendor,  when  he  contracts  to  convey  a  clear  title,  he 
must  aver  and  prove,  in  a  suit  brought  by  him  against  the 
vendee  for  specific  performance,  that  he  is  able  and  willing 
to  give  such  a  title  as  would  be  satisfactory  to  persons  of 
ordinary  prudence.  If  there  be  a  judgment  lien  on  the  prop- 
erty, the  purchaser  will  not  be  compelled  to  complete,  un- 
less he  can  be  protected  by  an  application  of  the  purchase 
money  to  the  discharge  of  the  judgment,  even  though  the 

'  Marsh  v.  Wyckoff,  10  Bosw.,  202.  ^  Leg  v.  Huber,  3  Watts,  367. 

2  Hinckley  v.  Smith,  51  N.  Y.,  21. 

"  Hoover  v.  Calhoun,  16  Gratt.,  109.  In  this  case  it  was  admitted  that  the 
wife  was  not  bound  by  the  agreement,  and  that,  in  general,  specific  performance 
would  not  be  decreed,  unless  the  contract  was  mutually  obligatory.  But  it  was 
claimed  that  she  might  adopt  the  contract  of  her  husband,  and  that  by  filrng  a 
bill  for  specific  performance,  she  made  the  remedy  mutual.  But  it  will  fje  borne 
in  mind,  that,  as  a  rule,  a  contract  can  only  be  enforced  between  the  parties 
themselves,  or  those  claiming  under  them,  in  privity  of  estate,  or  of  representa- 
tion, or  of  title.  Moreover,  equity  will  not  compel  the  purchaser  of  an  entire 
tract  of  land,  to  take  a  part  of  it. 


544  ABSENCE,    OR    INSUFFICIENCY    OF    TITLE.  §  4IO. 

judgment  debtor  has  other  property  which  might  be  taken 
to  satisfy  the  judgment.'  A.  entered  into  a  contract  with 
B.  to  sell  him  certain  real  estate  free  of  incumbrance,  five 
hundred  dollars  to  be  paid  upon  the  delivery  of  the  deed, 
and  a  bond  and  mortgage  to  be  given  for  the  balance  of 
the  purchase  money.  There  were  mortgages  on  the  prop- 
erty, but  A.  had  a  verbal  understanding  with  the  mort- 
gagees, that  they  would  take  the  mortgage  to  be  given  by 
B.  and  release  their  mortgages.  B.  declining  to  take  the 
property,  A.  tendered  a  deed  and  brought  a  suit  for  spe- 
cific performance.  It  was  held  that  as  the  mortgages  on 
the  property  had  not  been  actually  released,  B.  could  not 
be  compelled  to  perform.'  When  the  vendor  agrees  to 
convey  land  free  of  incumbrances,  his  inability  to  procure 
the  release  of  an  outstanding  inchoate  right  of  dower  is  a 
breach  of  his  contract'  Where  real  estate  held  in  trust 
was  to  be  conveyed  to  the  ceshtis  que  tj^itst  upon  a  certain 
event  which  had  happened,  and  the  latter,  having  entered 
into  a  contract  for  the  sale  of  the  property,  filed  a  bill 
against  the  purchaser  for  specific  performance,  it  was  held 
that  the  purchaser  ought  not  to  be  obliged  to  accept  the 
title  until  it  was  perfected  by  a  conveyance  from  the 
trustee  at  the  expense  of  the  vendors.' 

1  Walsh  V.  Barton,  24  Ohio  St.,  28. 

''■  Hinckley  v.  Smith,  supra.  Where  real  estate  is  offered  for  sale  at  auction  as 
free  from  incumbrance,  and  a  purchaser,  having  paid  full  value  for  the  property, 
afterward  discovers  that  there  are  mortgages  on  it,  he  cannot  be  compelled  to 
accept  the  title.     Mayer  v.  Adrian,  i"]  N.  C,  83. 

^  Shearer  v.  Ranger,  22  Pick.,  447  ;  Prescott  v.  Truman,  4  Mass.,  629  ;  Hen- 
derson v.  Henderson,  13  Mo.,  152;  Smith  v.  Cannel,  32  Me.,  126;  Holmes  v. 
Holmes,  12  Barb.,  137;  Heimburg  v.  Ismay,  35  N.  Y.  Sup.  Ct.,  35.  Contra, 
Obernyce  v.  Obertz,  17  Ohio,  71  ;  Blair  v.  Rankin,  11  Miss.,  440.  And  see 
Manson  v.  Brimfield  Manf.  Co.,  3  Mason,  355.  But  if  the  vendor,  instead  of 
stipulating  that  the  property  is  free  from  incumbrance,  covenants  that  the  pur- 
chaser shall  enjoy  free  from  incumbrances,  the  covenant  is  not  broken  by  the 
existence  of  a  mere  right  of  dower.  Vane  v.  Lord  Barnard,  Gilbert,  Eq.  R.,  7. 
"It  is  one  of  the  best  settled  principles  of  the  law  of  vendor  and  purchaser,  that, 
as  a  general  rule,  the  right  of  the  latter  to  a  title  clear  of  all  claims  whatsoever, 
present  and  future,  fixed  or  contingent,  is  one  of  which  he  cannot  be  deprived 
but  by  his  own  acts.  It  is  a  right,  as  has  been  often  observed  by  the  greatest 
equity  judges,  given  by  the  law,  and  not  springing  from  the  contract  of  the  par- 
ties."    Rawle  on  Covenants,  138,  139. 

*Read  v.  Power,  12  R.  I.,  16. 


§411-       NOT    OBLIGED    TO    ACCEPT    A    DOUBTFUL    TITLE.       545 

§  411.  Vendee  not  obliged  to  accept  a  doubtful  title. — 
Specific  performance  will  not  be  decreed  against  the  pur- 
chaser when  the  title  is  doubtful.'  It  is  a  sufficient  objec- 
tion if  the  facts  throw  a  cloud  on  the  title,  and  render  it 
suspicious  in  the  minds  of  reasonable  men.''  In  one  case, 
the  title  of  the  vendor  being  derived  by  purchase  from  his 
son,  in  consideration  of  an  annuity  and  the  release  of  a 
debt,  it  was  held  that  the  vendor  w^as  bound  to  prove  that 
the  transaction  was  bona  fide.''  Where  executors  sold  real 
estate,  the  testator's  title  to  five-sixths  being  clear,  but  for 
the  other  sixth'  no  deed  could  be  found,  and  evidence  was 
introduced  to  prove  that  the  former  owner  made  a  deed  of 
it,  though  there  was  a  doubt  whether  the  witness  might 
not  be  mistaken  as  to  the  property  conveyed,  specific  per- 
formance was  refused ;  and  the  deed  for  the  one-sixth  hav- 
ing afterward  been  found,  but  the  property  having  in  the 
meantime  greatly  depreciated  in  value,  it  was  held  that  the 
purchaser  would  not  be  compelled  to  take  it'  Where  the 
uncertainty  as  to  the  title  arose  chiefly  from  vague  and  ob- 
scure testimony,  and  the  uncertainty  might  perhaps  be  re- 
moved by  further  testimony,  the  chancellor  directed  that 
the  examination  should  be  pursued,  and  the  questions  of 
fact  be  submitted  to  a  jury."  The  equitable,  as  well  as  the 
legal,  title,   must   be  satisfactory  to  the   court,   or  specific 

1  Vancouver  v.  Bliss,  11  Ves.,  458  ;  Shapland  v.  Smith,  i  Bro.  C.  C,  75  ;  Slo- 
per  V.  Fish,  2  Ves.  &  Bea.,  145  ;  Collier  v.  M'Bean,  L.  R.  i,  Ch.  81  ;  Howarth 
V.  Smith,  6  Sim.,  161  ;  Mullins  v.  Trinder,  L.  R.  10,  Eq.  449  ;  Sohier  v.  Wil- 
liams, I  Curtis  C.  C,  479 ;  Dutch  Church  v.  Mott,  7  Paige  Ch.,  T"] ;  Seymour  v. 
Delancey,  Hopkins  Ch.,  436;  5  Cowen,  714;  Bartlett  v.  Blanton,  4  J.  J.  Marsh, 
426;  Jarman  v.  Davis,  4  T.  B.  Mon.,  115;  Hightower  v.  Smith,  5  J.J.  Marsh, 
542;  Beckwith  v.  Kouns,  6  B.  Mon.,  222;  Starnes  v.  Allison,  2  Head,  Tenn., 
221;  Sturtevant  v.  Jaques,  14  Allen,  523;  Swayne  v.  Lyon,  67  Pa.  St.,  436 ; 
Young  v.  Rathbone,  i  C.  E.Green,  224;  Griffin  v.  Cunningham,  19  Gratt.,  571  ; 
Powell  V.  Conant,  33  Mich.,  396. 

-  Snyder  V.  Spaulding,  57  111.,  480;  Lowry  v.  Muldron,  8  Rich.  Eq.,  241  ;  But- 
ler V.  O'Hear,  i  Dessaus  Eq.,  382  ;  Collins  v.  Smith,  i  Head,  Tenn.,  251  ;  Little- 
field  V.  Tinsley,  26  Texas,  353.  For  a  case  showing  what  defects  will  induce  a 
court  of  equity  to  refuse  aid  to  the  vendor  when  there  is  doubt  in  relation  to  the 
title,  see  Dalzell  v.  Crawford,  i  Pars.  Sel.  Cas.,  37. 

'  Boswell  V.  Mendham,  6  Mad.,  373. 

*  Griffin  v.  Cunningham,  supra.     See  Golden  v.  Knapp,  28  N.  J.  Eq.,  605. 

^  Seymour  v.  Delancey,  supra. 

35 


546  ABSENCE,    OR    INSUFFICIENCY    OF    TITLE.  §411. 

performance  will  not  be  decreed  against  the  vendee.'  Not- 
withstanding, therefore,  a  court  of  law  certifies  in  favor  of 
the  title,  if  there  be  an  equitable  objection  to  it,  specific 
performance  will  be  refused."  If  the  doubt  depend  on  a 
point  of  law,  it  may  be  decided  by  the  court'  The  pur- 
chaser may  be  compelled  to  accept  the  title,  notwithstand- 
ing it  was  held  bad  in  the  court  below,  if  the  appellate 
court  decide  otherwise.*  It  was  formerly  the  practice  of 
the  court  to  decide,  in  all  cases  of  disputed  title,  either  for 
or  against  the  validity  of  the  title,  and  either  to  compel  the 
purchaser  to  take  it  as  good  or  to  dismiss  the  bill  on  the 
ground  that  it  was  bad.  But  now  the  court,  v/ithout  de- 
ciding that  a  title  is  bad,  may  regard  it  as  so  doubtful,  that 
it  will  not  compel  a  purchaser  to  take  it."  It  has  been  said 
that  every  title  is  good  or  bad,  and  that  the  court  ought  to 
know  nothing  of  a  doubtful  title.'     But   "though   every 

'  Creigh  v.  Shatto,  9  Watts  &  Serg.,  82. 

^  Morrison  v.  Barrow,  i  De  G.  F.  &  J.,  633.  A  defective  equitable  title  will  be 
deemed  a  sufficient  objection  in  a  court  of  law.  In  Cadwallader  v.  Price,  11 
Jur.,  132,  Baron  Parke  said :  "  This  is  not  the  only  case  in  which  courts  of  law 
are  called  on  to  determine  questions  appertaining  to  courts  of  equity.  Where  a 
man  sells  an  estate,  we  are  called  on  to  say  whether  the  title  he  offers  is  a  good 
one  both  at  law  and  in  equity,  and  the  point  before  us  in  such  cases  is,  can  such 
good  title  be  made  ?  " 

'  Lyddal  v.  Weston,  2  Atk.,  20;  Minet  v.  Leman,  i  Jur.  N.  S.,  411  ;  Beioley 
V.  Carter.  L.  R,  4,  Ch.  230. 

*  Mullins  V.  Trinder,  18  W.  R.,  1186  ;  Beioley  v.  Carter,  supra.  But  set  post, 
§413. 

*  Marlow  v.  Smith,  2  P.  Wms.,  198 ;  Sloper  v.' Fish,  2  V.  &  B.,  149.  And  see 
Cooper  V.  Denne,  4  Bro.  C.  C,  80  ;  S.  C,  i  Yes.  Jr.,  565  ;  Sheffield  v.  Lord  Mul- 
grave,  2  lb.,  526 ;  Roake  v.  Kidd,  5  Yes.,  647  ;  Wilcox  v.  Bellaers,  T.  &  R.,  491. 
A  decision  of  the  court  as  to  the  validity  of  a  title  removes  the  doubt  respecting 
it,  and  speciiic  performance  will  be  decreed.  Bell  v.  Holtby,  L.  R.  15,  Eq.  178. 
"  Where  doubtful  cases  of  construction  arise,  whether  on  an  act  of  Parliament 
or  the  words  of  an  instrument  or  will,  it  is  the  duty  of  this  court  to  remove  that 
doubt  by  deciding  it ;  and,  instead  of  feeling  a  doubt  whether  other  judges  at 
other  times  may  think  in  the  same  way  with  them,  I  consider  it  the  duty  of  the 
court  to  assume  that  that  which  a  competent  tribunal  has  at  one  time  decided 
will  be  followed  at  future  times,  and  that  that  which  judges  at  the  present  time 
think  right,  it  is  to  be  assumed  judges  of  equal  competency  in  the  future  will 
think  right  also."     Ibid.,  per  Malins,  V.  C. 

"  See  Vancouver  V.  Bliss,  11  Yes.,  465.  In  this  case.  Lord  Eldon  remarked 
that  he  "recollected  the  period  when  it  was  the  office  of  the  court  to  decide 
whether  the  title  was  good  or  not,  and  it  was  thought  better  that  the  dry  rule 
should  prevail  that  if  the  title  was  good  the  purchaser  should  take  it,  than  that 
the  court  should  speculate  upon  the  point  whether  there  was  more  or  less  diffi- 
culty in  the  title,  and  say  in  one  case  he  should  take  it,  in  another  he  should  not. 


§  412.  DOUBT    AS    TO    TITLE,  54/ 

title  must,  in  itself,  be  either  good  or  bad,  there  must  be 
many  titles  which  the  court  cannot  pronounce  with  cer- 
tainty to  belong  to  either  of  these  categories  in  the  absence 
of  the  parties  interested  in  supporting  both  alternatives, 
and  without  having  heard  the  evidence  they  might  have  to 
produce  and  the  arguments  they  might  be  able  to  urge  ;  and 
it  is  in  the  absence  of  these  parties  that  the  question  is  gen- 
erally agitated  in  suits  for  specific  performance.  The  court, 
when  fully  informed,  must  know  whether  the  title  be  good 
or  bad.  When  partially  informed,  it  often  may  and  ought 
to  doubt." ' 

§  412.  What  doubt  as  to  title  will  be  a  defence. — 
Although  no  general  rule  can  be  laid  down  as  to  the  kind 
of  doubt  which  will  induce  the  court  to  withhold  a  decree 
for  specific  performance,  yet  it  will  do  so,  if  a  third  person 
has  an  interest  in,  or  claim  against,  the  property,  however 
improbable  it  be  that  the  right  will  be  exercised  ;  for  the 
decree  of  the  court  is  i^i  personam,  and  not  in  re^n,  and 
binds  only  those  who  are  parties  to  the  suit,  and  persons 

The  old  course  was,  that  if  the  parties  were  afraid  of  the  decision,  they  ap- 
pealed ;  and  had,  not  a  title  absolutely  indefeasible,  but  as  good  a  warranty  as 
could  be  procured.  The  departure  from  that  course  has  been  attended  with 
great  mischief.  Whenever  a  contract  is  made  for  the  purchase  of  land,  though 
no  doubt  has  ever  been  entertained  upon  the  title,  no  one  thinking  of  disputing 
it,  if  the  purchaser  has  a  good  bargain,  he  overlooks  all  these  objections  ;  but  if 
he  finds  he  cannot  sell  the  estate  as  well  as  he  wished,  or  cannot  enjoy  it  to  his 
satisfaction,  the  first  thing  is  that  the  abstract  goes  to  some  one  for  the  express 
purpose  of  finding  out  objections,  and  opinions  are  given  on  both  sides.  I  feel 
great  concern  for  the  owners  of  this  sort  of  property.  The  consequence  is,  not 
only  the  misery  arising  from  the  uncertainty  whether  that  which  they  have  been 
enjoying  with  happiness,  and  upon  which  their  families  are  to  subsist,  is  their 
property ;  but  it  is  an  invitation  to  all  who  may  fancy  they  have  an  interest  in  it, 
to  make  an  attack.  There  cannot  be  much  doubt,  therefore,  which  is  the  best 
rule."     See  Jervoise  v.  Duke  of  Northumberland,  i  J.  &  W.,  568. 

'Fry  on  Specif.  Perform.,  254,  255.  "This  anomaly  in  the  practice  of  courts 
of  equity,  which  refuse  to  decide  whether  the  title  is  good  or  bad,  and  only  de- 
cide that  there  is  doubt  about  it,  and  which  refuse  to  force  the  purchaser  to  take 
the  title  if  there  is  a  cloud  upon  it,  incidentally  arose  from  their  considering  that 
there  was  a  remedy  at  law,  and  that  the  jurisdiction  was  therefore  discretionary. 
But  the  doctrine  seems  now  to  be  too  well  established  to  allow  us  to  confine  its 
application  to  those  cases  where  relief  can  be  obtained  at  law.  It  is  said  that 
the  court,  knowing  that  its  decision  on  the  title  could  not  bind  everybody,  would 
not  force  the  purchaser  to  take  a  title  which  it  could  not  warrant  to  him.  But 
this  obviously  supposed  an  uncertainty  as  to  the  law,  which  ought  in  a  perfect 
system  of  jurisprudence  never  to  be  presumed."  Batten  on  Specif.  Perform,, 
117. 


548  ABSENCE,    OR    INSUFFICIENCY    OF    TITLE.  §  412. 

claiming-  under  them.'  "  Every  purchaser  of  land  has  a  right 
to  demand  a  title  which  shall  protect  him  from  anxiety,  lest 
annoying,  if  not  successful,  suits,  be  brought  against  him, 
and  probably  take  from  him,  or  his  representatives,  land 
upon  which  money  was  invested.  He  should  have  a  title 
which  should  enable  him,  not  only  to  hold  his  land,  but  to 
hold  it  in  peace  ;  and  if  he  wishes  to  sell  it,  to  be  reasona- 
bly sure  that  no  flaw  or  doubt  will  come  up  to  disturb  its 
marketable  value."'  When  doubts  are  raised  by  extrinsic 
circumstances,  which  neither  the  purchaser  nor  the  court 
can  satisfactorily  investigate,  for  the  want  of  means  to  do 
so,  the  court  will  refuse  its  aid.  But  a  threat,  or  even  the 
possibility  of  a  contest,  will  not  suffice  to  cast  a  reasonable 
doubt  on  the  title."  The  doubt  must  be  "  considerable  and 
rational,  such  as  would  and  ought  to  induce  a  prudent  man 
to  pause  and  hesitate  ;  not  based  on  captious,  frivolous,  and 


'  Pyrke  v.  Waddingham,  10  Hare,  i  ;  Richmond  v.  Gray,  3  Allen,  25  ;  Voor- 
hees  V.  De  Myer,  3  Sandf.  Ch.,  614;  Sturtevant  v.  Jaques,  14  Allen,  525;  Swayne 
V.  Lyon,  67  Pa.  St.,  436;  Griffin  v.  Cunningham,  19  Gratt.,  571  ;  Dobbs  v.  Nor- 
cross,  24  N.  J.  Eq.,  327  ;  Smith  v.  Turner,  50  Ind.,  367  ;  Jeffries  v.  Jeffries,  117 
Mass.,  184. 

'  Dobbs  V.  Norcross,  supra.  In  a  sale  made  by  order  of  court  one  of  the  con- 
ditions provided  that  the  abstract  should  commence  with  a  certain  conveyance, 
that  the  purchaser  should  accept  such  commencement  as  a  good  root  of  title, 
and  not  make  any  objection  in  respect  of  any  prior  title  ;  and  by  another  con- 
dition, the  purchaser  was  to  accept  all  recitals  and  statements,  in  every  abstracted 
document  dated  twenty  years  or  more  prior  to  the  sale,  as  sufficient.  The  pur- 
chaser having  investigated  the  prior  title,  and  ascertained  that  it  was  bad,  it  was 
held  that  he  had  a  right  to  be  discharged  from  his  purchase.  The  court  said  : 
"  A  buyer  no  doubt  knows  that  unusual  conditions  of  sale  are  framed  to  meet 
peculiar  difficulties  ;  and  these  are  quite  fair  even  when  framed  by  the  court,  if 
they  will  still,  in  the  opinion  of  the  court,  leave  the  purchaser  in  the  complete 
possession  of  the  thing  he  has  bought,  even  though  he  does  not  get  what  is 
(Called  a  marketable  title  ;  but  if  not,  the  court  has  no  right  to  enter  into  such 
contests,  and  try  to  fence  with  and  outwit  purchasers,  and  sell  on  the  chance  of 
the  purchaser  being  able  to  resist  a  suit  for  the  recovery  of  the  possession  of  the 
lands  on  a  defect  not  disclosed  to  him.  1  am  of  opinion  that  such  a  condition 
would  be  bad  as  a  fraudulent  misleading  condition  in  any  sale,  for  it,professes, 
or  induces  the  buyer  to  believe,  that  the  recital  accurately  represents  the  will, 
which  it  does  not.  But  in  a  sale  under  the  authority  of  the  court  of  chancery, 
which  above  all  things  ought  to  teach  others  and  set  them  an  example  of  straight- 
forward dealing,  and  telling  the  truth,  and  the  whole  truth,  such  a  condition, 
under  the  circun^stances  of  this  case,  is  in  my  opinion  binding  on  no  one.  No 
good  title  being  shown,  and  the  purchaser  not  b;ing  bound  by  the  conditions  of 
sale  to  accept  a  bad  one,  he  must  be  discharged  from  his  purchase,  and  have  his 
,costs  of  the  whole  proceedings."    Romilly,  M.  R.,  Else  v.  Else,  L.  R.  13,  Eq.  196. 

^  Kostenbader  v.  Spotts,  80  Pa.  St.,  430. 


§412.  DOUBT    AS    TO    TITLE.  549 

astute  niceties,  but  such  as  produce  real  bona  fide  hesitation 
in  the  mind  of  the  chancellor." '  Where  the  title  of  the 
vendor  depended  upon  the  construction  of  a  will,  the  court 
declined  to  enforce  specific  performance,  although  it  was  of 
the  opinion  that  the  title  was  good."  The  purchaser  will 
not  be  compelled  to  accept  a  title  depending  upon  an  illegal 
and  invalid  sale  while  it  remains  open  to  review  by  a  court 
of  lav/,  although  the  judgment  unreversed  might  be  con- 
clusive on  the  party's  rights.'  If  a  suit  be  pending  against 
the  vendor  in  which  an  adverse  claim  is  set  up  to  part  of 
the  land,  the  purchaser  will  not  be  compelled  to  complete 
until  after  a  decision  has  been  rendered.'  A  vendee  will  not 
be  compelled  to  accept  a  title  depending  upon  an  act  of  the 
Legislature  of  doubtful  validity.'  Where  the  evidence  of 
title  was  merely  that  of  long  possession,  it  was  held  that  the 
purchaser  would  not  be  compelled  to  accept  the  title.'    Spe- 

'  Lord  Eldon  in  Stapylton  v.  Scott,  i6  Ves.,  272.  Two  messuages,  held  under 
separate  trusts,  belonging  to  a  testator's  estate,  were  put  up  for  sale  together 
under  a  decree  for  administering  the  estate,  and  it  was  provided  that  the  pur- 
chase money  should  be  paid  into  court.  The  purchaser  objected  to  the  title  on 
the  ground  that  the  two  properties  were  sold  together,  without  any  provision  for 
apportioning  the  amount  realized.  It  was  held,  affirming  the  decision  of  the 
vice-chancellor,  that  this  objection  could  not  be  sustained,  for  the  court  having 
the  money  in  its  custody,  would  see  it  properly  applied.  But,  for  the  satisfaction 
of  the  purchaser,  the  purchase  money  was  ordered  to  be  apportioned,  and  paid 
into  court  to  separate  accounts.  Cavendish  v.  Cavendish,  L.  R.  10,  Ch.  319. 
A  trustee  had  a  discretionary-  trust  for  the  sale  of  real  estate  under  a  will,  at  such 
price  as  he  should  think  reasonable,  with  power  to  postpone  the  sale,  and  lease  the 
property  for  thirty  years  with  the  concurrence  of  the  beneficiaries.  Having  done 
the  latter,  before  the  termination  of  the  lease  the  property  was  put  up  for  sale 
by  the  lessee  and  trustee  conjointly,  the  facts  being  disclosed  by  the  particulars 
of  sale  ;  and  a  sale  having  been  made,  the  purchase  money  was  apportioned  be- 
tween the  two  interests  according  to  the  valuation  of  a  competent  valuer.  It 
was  held  that  the  purchaser  could  insist  on  the  concurrence  of  the  beneficiaries 
on  the  ground  that  the  valuation  was  not  made  before  the  sale,  but  that  he  must 
take  the  title.     Morris  v.  Debenham,  L.  R.  2,  Ch.  D.  540. 

^  Pyrke  v.  Waddingham,  supra.  ^  Young  v.  Rathbone,  16  N.  J.  Eq.,  224. 

*  McCuUoch  V.  Gregory,  2  Jur.  N.  S.,  11 34;  Grove  v.  Bastard,  2  Phil.,  619; 
Bentley  v.  Craven,  17  Beav.,  204.  Equity  will  not  compel  one  who  has  purchased 
land  through  an  agent  under  an  agreement  that  he  is  to  have  a  perfect  title,  to 
accept  a  deed,  where  notice  oi  lis  pendens  is  filed  impeaching  the  vendor's  title. 
Earl  V.  Campbell,  14  How.  Pr.,  330. 

*  Bumberger  v.  Clippinger,  5  Watts  &  Serg.,  311. 

*  Cunningham  v.  Sharp,  11  Humph.,  116.  Twenty  years'  uninterrupted  posses- 
sion is  not  sufficient  to  raise  the  presumption  of  a  conveyance  from  the  vendor's 
immediate  grantor.  Lewis  v.  Herndon,  3  Litt.,  358.  A  conveyance  will  not  be 
decreed,  where  naked  possession  is  the  only  evidence  of  title.  Rights  growing 
out  of  possession,  are  matters  of  legal  cognizance.  Smith  v.  HoUenback,  57  111., 
223.     But  see  Strober  v.  Button,  6  Phila.,  185, 


550  ABSENCE,    OR    INSUFFICIENCY    OF    TITLE.  §  4^2 

cific  performance  will  not  be  decreed,  unless  the  vendor  can 
give  a  marketable  title,  even  though  a  court  might  consider 
the  title  good.'  But  there  must  be  some  debatable  ground 
on  which  the  doubt  can  be  justified.''  A  title  may  be  doubt- 
ful because  it  depends  on  a  doubtful  question  of  law  not 
settled  by  any  binding  authority,  of  which  different  courts 
may  take  an  opposite  view,  and  where  those  who  may  here- 
after claim  an  interest  in  the  property,  will  not  be  concluded 
by  the  decree.'  A  doubtful  title  cannot  be  made  marketa- 
ble by  an  opinion  of  the  court  on  a  case  stated  between  the 
vendor  and  vendee.*  A  title  depending  upon  the  bar  of  the 
statute  of  limitations,  may  be  a  marketable  title  which  a 
purchaser  will  be  compelled  to  accept,  if  it  clearly  appear 
that  the  entry  of  the  real  owner  is  barred.'  Where  a  con- 
tract for  the  purchase  of  property  is  "  subject  to  the 
approval  of  the  title  by  the  purchaser's  solicitor,"  if  the  lat- 
ter disapproves  of  the  title,  the  vendor,  in  the  absence  of 
bad  faith  or  unreasonableness  on  the  part  of  the  purchaser 
or  his  solicitor,  cannot  enforce  specific  performance  of  the 
contract.'  A  condition  in  a  contract  of  sale,  that  "if  the 
purchaser  shall  make  any  objection  or  requisition  in  respect 


1  Swayne  V.  Lyon,  67  Pa.  St.,  436  ;  Freetly  v.  Barnhart,  51  lb.,  279  ;  Speakman 
V.  Forepau^h,  44  lb.,  363  ;  Butler  v.  O'Hear,  i  Dessaus  Eq.,  382  ;  Linkous  v. 
Cooper,  2  W.  Va.,  67  ;  Thompson  v.  Dulles,  5  Rich.  Eq.,  370  ;  Littlefield  v.  Tins- 
ley,  26  Texas,  353 ;  Powell  v.  Conant,  33  Mich.,  396. 

^  Vreeland  v.  Blauvelt,  23  N.  J.  Eq.,  483. 

'  Sohier  v.  Williams,  i  Curtis  C.  C,  479 ;  McDonald  v.  Walker,  11  Eng.  L.  & 
Eq.,  324;  Wilson  v.  Bennett,  13  lb.,  431.  A  doubtful  title  which  the  purchaser 
will  not  be  compelled  to  accept,  may  be  in  relation  to  either  a  matter  of  law,  or 
of  fact.  The  doubt  may  arise  from  the  general  law  of  the  land,  or  from  the  con- 
struction of  particular  instruments.  Sloper  v.  Fish,  2  V.  &  B.,  145  ;  Blosse  v. 
Lord  Clammorris,  3  Bli.,  62  ;  Lincoln  v.  Arcedeckne,  i  Coll.  C.  C,  38;  Bristow 
V,  Wood,  lb.,  480 ;  Pyrke  v.  Waddingham,  10  Hare,  9  ;  or  it  may  be  with  respect 
to  facts  connected  with  the  title,  or  in  relation  to  extrinsic  facts.  It  may  relate 
to  a  fact  susceptible  of  proof,  but  which  has  not  been  satisfactorily  established. 
Smith  V.  Death,  5  Mad.,  371  ;  or  to  a  matter  incapable  of  satisfactory  proof. 

*  Pratt  V.  Eby,  67  Pa.  St.,  396. 

^  Shober  v.  Dutton,  6  Phila.,  185.  The  purchaser  will  not  be  compelled  to 
accept  and  pay  for  land  which  the  seller  claims  to  own  only  by  having  had  pos- 
session of  it  himself  for  the  time  prescribed  by  the  statute  of  limitations  as  a  bar 
to  a  suit  to  recover  it  against  him,  unless  the  purchaser  took  possession  under 
the  contract,  and  continues  to  hold  it.     Chapman  v.  Lee,  55  Ala.,  616. 

»  Hudson  V.  Buck,  L.  R.  7.  Ch.  D.  683. 


§413-  WHERE    TITLE    HAS    BEEN    OBJECTED    TO.  55 1 

of  the  title,  or  of  any  other  matter  or  thing  whatsoever 
which  the  vendor  shall  be  unwilling  on  the  ground  of  ex- 
pense or  otherwise  to  comply  with,"  the  vendor  shall  be  at 
liberty  to  annul  the  sale,  does  not  give  the  vendor  a  right 
to  rescind  the  contract  where  he  fails  to  show  any  title 
whatever ;  but,  in  that  case,  the  purchaser  may  have  judg- 
ment for  such  damages,  costs,  and  expenses,  as  he  may  have 
sustained  in  consequence  of  the  non-performance  of  the 
contract/ 

§  4 1 3.  Where  title  has  been  objected  to,  o)'  pronounced  bad. 
— Notwithstanding  the  court  may  regard  the  title  favorably, 
if  it  has  been  questioned  by  other  persons  wiiose  opinion 
on  the  subject  is  entitled  to  respect,  specific  performance 
may  be  refused/  But  how  far  such  a  circumstance  will  ever 
weigh  with  the  court,  must  of  course  depend  upon  the  nat- 
ure of  the  objection  and  of  the  case.  It  would  be  likely,  in 
any  event,  to  cause  the  judge  to  examine  the  question  with 
the  greatest  care,  and  to  decide  in  favor  of  the  title  only 
upon  the  most  settled  convictions.'  It  has  been  held  in  En- 
gland, that  if  the  title  has  been  decided  against  by  the  lower 
court,  the  appellate  court,  though  of  a  different  opinion, 
will  not  compel  the  purchaser  to  accept  the  title;'  or  the 
latter  court  may,  under  such  circumstances,  decline  to  pass 
upon  the  title,  and  refuse  to  aid  in  enforcing  the  contract," 
unless  the  case  involves  a  question  of  general  law  concern- 
ing real  estate  applicable  to  all  similar  cases,  which  the  court 
is  bound  to  determine." 

•  Bowman  v.  Hyland,  L.  R.  8,  Ch.  D.  588. 

"Price  V.  Strange,  6  Mad.,  159,  164;  Pyrke  v.  Waddingham,  10  Hare,  i  ; 
Snyder  v,  Spaulding,  57  111.,  480. 

^  See  Wrigley  v.  Sykes,  21  Beav.,  337  ;  Hamilton  v.  Buckmaster,  L.  R.  3, 
Eq.  323- 

''  Rose  V.  Calland,  5  Yes.,  186.     But  see  atite,  §411. 

'  Collier  v.  McBean,  L.  R.  i,  Ch.  81. 

°  Alexander  v.  Mills,  L.  R.  6,  Ch.  124,  131.  In  this  case  the  court  remarked 
as  follows  :  "  We  do  not  say  that  there  may  not  be  cases  in  which  a  question  of 
law  may  be  considered  doubtful,  that  a  court  would  not,  on  its  own  view,  compel 
a  purchaser  to  take  a  title.  Still,  as  a  general,  almost  universal,  rule,  the  court 
is  bound  as  much  between  the  vendor  and  purchaser,  as  in  any  other  case,  to 
ascertain  and  determine,  as  it  best  may,  what  the  law  is,  and  to  take  that  to  be 


552  ABSENCE,    OR    INSUFFICIENCY    OF    TITLE.  §  414- 

§  414.  What  implied  with  reference  to  title. — In  every 
contract  for  the  sale  of  land,  there  is  an  implied  undertak- 
ing to  make  a  good  title,  unless  such  an  obligation  is  ex- 
cluded by  the  terms  of  the  agreement ;  and  the  purchaser 
is  not  bound  to  accept  a  quit-claim  deed  where  the  vendor's 
chain  of  title  on  the  record  is  defective  in  consequence  of 
the  alleged  loss  of  one  of  the  conveyances.'  As  a  general 
rule,  it  makes  but  little  difference  what  the  precise  terms  of 
the  contract  are — whether  the  vendor  agrees  to  make  title, 
or  a  good  title,  or  to  make  a  deed,  or  a  warranty  deed — if 
it  appears  that  he  is  negotiating  to  sell  at  a  sound  price,  to 
be  paid,  or  part  paid,  at  the  conveyance.  In  such  cases, 
usually,  the  vendor,  without  a  nice  examination  of  words, 
is  understood  to  agree  to  furnish  a  good  title,  and  the  ven- 
dee cannot  be  put  off  with  merely  a  good  deed.  This  rule, 
however,  does  not  preclude  those  cases  where  the  vendee 
appears  to  be  purchasing  the  vendor's  title  such  as  it  may 
be."  Where  A.,  B.,  and  C.  gave  their  bond  to  D.  conditioned 
to  make  a  lawful  title  to  him  of  certain  land,  and  A.  ten- 
dered D.  a  general  warranty  deed  for  the  land,  B.  tendered 
a  general  warranty  deed  for  an  undivided  third  part  of  the 

law  which  it  has  so  ascertained  and  determined.  The  exceptions  to  this  will 
probably  be  found  to  consist,  not  in  pure  questions  of  legal  principle,  but  in  cases 
where  the  ditficulty  and  doubt  arise  in  ascertaining  the  true  construction  and 
legal  operation  of  some  ill-expressed  and  inartificial  instrument.  This  case  in- 
volves a  question  of  general  law,  applicable  to  all  similar  settlements,  and  we 
are  bound  to  say,  one  way  or  the  other,  what  that  law  is  ;  and  we  cannot  in  such 
a  case  escape  from  that  duty  by  saying  that  the  decision  of  the  master  of  the 
rolls,  in  taking  one  view,  makes  the  other  view,  if  held  by  us,  so  doubtful  that 
we  cannot  force  it  on  the  purchaser."  See  Beioley  v.  Carter,  L.  R.  4  Ch.,  230 ; 
Bell  v.  Holtby,  L.  R.  15  Eq.,  178. 

'  Matter  of  Hunter,  i  Edw.  Ch.,  i  ;  Holland  v.  Holmes,  14  Fla.,  390.  Upon 
a  sale  of  real  estate  without  any  stipulation  as  to  the  nature  of  the  title,  the 
purchaser  has  a  right  to  a  clear  title  and  a  deed  with  covenants  of  general  war- 
ranty. Goddin  v.  Vaughn,  14  Gratt.,  102  ;  Witter  v.  Biscoe,  13  Ark.,  422  ;  Tre- 
main  v.  Lining,  Wright,  644  Clark  v.  Lyons,  25  111.,  105  ;  Vardeman  v.  Law- 
son,  17  Texas,  10.  And  see  Holman  v.  Criswell,  13  Ark.,  422.  Unless  a  pur- 
chaser at  a  judicial  sale  is  put  upon  his  guard  by  a  previous  notice,  he  may  in- 
sist on  a  good  title ;  and  he  will  not  be  compelled  to  pay  the  purchase  money 
and  accept  a  conveyance,  unless  defects  shown  by  him  are  remedied.  Fryer 
V.  Rockefeller,  63  N.  Y.,  268.  See,  however,  Corbitt  v.  Dawkins,  54  Ala.,  282, 
where  it  was  held  that  in  judicial  sales,  in  the  absence  of  fraud,  no  inquiry  into 
the  title  can  be  indulged,  but  the  purchaser  will  be  conclusively  presumed  to 
have  inquired  for  himself,  and  to  have  ascertained  what  he  was  purchasing. 

^  Shreck  v.  Pierce,  3  Iowa,  350. 


§  414- 


WHAT  IMPLIED  WITH  REFERENCE  TO  TITLE.  553 


land,  and  C.  made  a  similar  deed  for  another  third,  it  was 
held  insufficient ;  D.  being  entitled  to  a  joint  deed,  with 
the  usual  covenants,  executed  by  all  three  of  the  obligors.' 
When  a  purchaser  has  contracted  for  a  good  title  of  record, 
and,  upon  a  bill  filed  by  the  vendor  for  specific  performance, 
it  appears  that  the  plaintiff  has  only  a  title  dependent  upon 
adverse  possession,  the  vendee  will  not  be  compelled  to  take 
that ;  a  good  title  of  record  being  different,  and  more  desira- 
ble, than  one  depending  upon  a  variety  of  extrinsic  circum- 
stances to  be  established  by  parol  evidence/  An  agreement 
to  give  a  "good  deed,"  is  not  simply  a  promise  to  execute 
a  deed  in  legal  form  with  proper  warranty,  but  a  deed  good 
and  sufficient  both  in  form  and  substance  to  convey  a  valid 
title  to  the  land.'    If  an  inquiry  be  directed  in  general  terms 

'  Clark  V.  Redman,  i  Blackf.,  379.  '  Page  v.  Greeley,  75  111.,  400. 

^  Clute  V.  Robinson,  2  Johns,  413  ;  Jones  v.  Gardiner,  10  lb.,  266  ;  Judson  v. 
Wass,  II  lb.,  528;  Carpenter  v.  Bailey,  17  Ind.,  244;  Traver  v.  Halstead,  23 
lb.,  66  ;  Everson  v.  Kirtland,  4  Paige  Ch.,  638  ;  Pomeroy  v.  Drury,  14  Barb., 
424  ;  Fletcher  v.  Button,  4  N.  Y.,  400  ;  Burwell  v.  Jc^ckson,  9  lb.,  535  ;  Story  v. 
Conger,  36  lb.,  673  ;  Swan  v.  Drury,  22  Pick.,  488  ;  Mead  v.  Fox,  6  Cush.,  202 ; 
Gilchrist  v.  Bine,  i  Dev.  &  Batt.  Eq.,  346  ;  Mitchell  v.  Hazen,  4  Conn.,  495  ; 
Little  V.  Paddleford,  13  N.  H.,  167  ;  Watts  v.  Waddle,  i  McLean,  200  ;  Green- 
wood V.  Ligon,  10  Sm.  &  Marsh,  615  ;  Taft  v.  Kessel,  16  Wis.,  273  ;  Lawrence 
V.  Dole,  II  Vt.,  549;  Dodd  v.  Seymour,  21  Conn.,  480;  Pugh  v.  Chesseldine,  11 
Ohio,  109;  Morgan  v.  Smith,  11  111.,  199;  Hunter  v.  O'Neil,  12  Ala.,  37; 
Freemster  v.  May,  13  Sm.  &  Marsh,  275  ;  Dearth  v.  Williamson,  2  Serg.  & 
Ravvle,  498;  Colwell  v.  Hamilton,  10  Watts,  415;  Cunningham  v.  Sharp,  11 
Humph.,  120;  Christian  V.  Cabell,  22  Gratt.,  82;  Tarwater  v.  Davis,  2  Eng. 
Ark.,  153;  Tindell  v.  Conover,  i  Zab.,  654;  Toll  Bridge  Co.  v.  Vreeland,  3 
Green  Ch.,  157.  Gp/z/ra,  Gazeley  v.  Price,  16  Johns,  267;  Parker  v.  Parmlee, 
20  lb.,  132  ;  Tinney  v.  Ashley,  15  Pick.,  552;  Barrow  v.  Bispham,  6  Halst.,  119  ; 
Hill  V.  Hobart,  16  Me.,  164.  See  Brown  v.  Covilland,  6  Cal.,  566  ;  Delavan  v. 
Duncan,  49  N.  Y.,  485.  In  Jones  v,  Gardiner,  supra,  the  vendor  agreed  to  give 
the  vendee  "a  good  and  sufficient  deed  in  law  to  vest  him  with  the  title  of  the 
said  farm  of  land  with  the  appurtenances."  "  The  title,"  say  the  court,  "  meant 
the  legal  estate  in  fee,  free  and  clear  of  all  valid  claims,  liens,  and  incum- 
brances whatsoever.  It  is  the  ownership  of  land,  the  dominiim  directuDi  et 
absoliitiim,  without  any  rightful  participation  by  any  other  person  in  any  part 
of  it.  If  the  plaintiff's  wife  had  a  contingent  life  estate  in  one-third  part  of  the 
farm,  the  defendant  had  not  a  clear  and  absolute  title."  The  same  was  held  in 
Porter  v.  Noyes,  2  Me.,  22,  where  the  vendor  was  "  to  make  a  warranty  deed 
free  and  clear  of  all  incumbrances,"  the  court  holding  that  the  foregoing  meant 
that  the  premises  should  be  in  fact  free  from  incumbrances,  which  was  not  the 
case,  there  being  an  inchoate  right  of  dower  therein.  It  was  held  in  Illinois 
that  a  covenant  to  make  a  general  warranty  deed  was  not  a  covenant  against 
incumbrances.  Bostwick  v.  Williams,  36  111.,  65.  As  to  the  meaning  of  the 
words  "the  title  to  be  a  good  and  sufficient  deed,"  see  Brown  v.  Gammon,  14 
Johns,  276.  Story,  J.,  in  Powell  v.  Monso.i  &  Brimfield  Manf.  Co.,  3  Mason, 
347,  said  :  "  Nor  am  I  prepared  to  admit  the  doctrine  contended  for  at  the  bar 
that_  a  covenant  against  incumbrances  is  broken  by  the  mere  existence  of  a 


554  ABSENCE,    OR    INSUFFICIENCY    OF    TITLE.  §  4^5- 

to  ascertain  whether  the  vendor  can  make  a  good  title,  it 
must  be  understood  to  mean  a  good  title  having  regard  to 
the  terms  of  the  contract.'  In  a  contract  for  the  purchase 
of  a  fee  sim})le  estate,  if  no  incumbrance  be  communicated 
to  the  purchaser,  or  be  known  by  him  to  exist,  he  has  a  right 
to  presume  that  he  is  buying  property  which  is  unincum- 
bered." Where  it  is  agreed  that  the  contract  may  be  re- 
scinded if  the  title  does  not  prove  "satisfactory"  to  the 
purchaser,  this  will  not  authorize  him  to  make  other  than 
the  usual  objections.' 

§  415.  Slight  defects  not  regarded. — Trifling  objections 
will  not  constitute  a  defence  to  specific  performance.  As, 
the  not  having  title  to  that  which  is  not  material ; '  or  a 

possible  incumbrance  ;  and  that  therefore  every  deed  containing-  such  a  cove- 
nant imports  a  contract  to  procure  its  extinguishment.  A  possibility  of  dower 
is  not,  within  the  sense  of  the  covenant,  an  incumbrance ;  for  that  means  a  set- 
tled fixed  incumbrance."  It  was  held  in  Vermont  that  a  covenant  "  to  give  a 
good  and  warranty  deed,"  did  not  refer  to  the  title,  but  to  the  instrument,  and  that 
the  inability  of  the  vendor  to  convey  a  title  free  of  incumbrance  did  not  constitute 
a  breach.  Joslyn  v.  Taylor,  33  Vt.,  470.  The  same  was  held  in  Preston  v. 
Whitcomb,  1 1  lb.,  47,  where  the  vendor  covenanted  to  make  and  execute  "  a 
good  and  authentic  deed  of  conveyance."  In  the  latter  case,  Redfield,  J.,  dis- 
senting, said  :  "  I  admit  that  when  the  contract  is  in  terms  for  the  execution  of 
a  deed  of  convevance  merely,  the  obligee  must  take  the  risk  of  the  title,  provided 
the  party  do  not  divest  himself  of  the  title  which  he  had  at  the  time  of  the  con- 
tract. When,  too,  the  contract  in  terms  requires  the  execution  of  a  deed  with 
covenants,  there  may  be  reason  to  suppose  the  parties  intended  to  look  to  the 
covenants  as  muniments  of  title.  But  when  the  contract  expressly  refers  to  the 
title  to  be  conveyed,  then  the  plaintiff,  in  order  to  recover  when  the  covenants 
are  dependent  on  each  other,  as  in  the  present  case,  must  not  only  aver  a 
readiness  to  convey,  but  must  prove  his  ability  to  convey  such  title  as  was  con- 
templated by  the  parties." 

'  Upperton  v.  Nickolson,  L.  R.  6,  Ch.  436. 

*  Garnett  v.  Macon,  6  Call,  309,  367  ;  Freer  v.  Hesse,  21  Eng.  L.  &  Eq.,  82  ; 
Salisbury  v.  Hatcher,  6  Jur.,  1051  ;  Hunt  v.  Saunders,  i  Monr.,  219  ;  Sturtevant 
v.  Jaques,  14  Allen,  523  ;  Swinnhart  v.  Cline,  19  Ind.,  264. 

=  Lord  V.  Stephens,  i  Y.  &  C.  Ex.,  222.  Where  a  contract  in  writing  for  the  pur- 
chase of  certain  land  contained  this  clause,  "  the  title  on  investigation  to  be 
satisfactory,"  and  the  purchaser  notified  the  vendor  that  the  title  was  not  satis- 
factory', whereupon  the  vendor's  agent,  the  vendor  being  a  non-resident,  said 
that  the  vendor  would  perfect  the  title,  it  was  held  not  to  be  a  case  for  specific 
performance  at  the  suit  of  the  purchaser.  Taylor  v.  Williams,  45  Mo.,  80.  The 
attempt  was  to  engraft  the  new  promise  upon  the  old  one,  and  thus  bring  it 
under  the  protection  of  the  written  instrument,  which  could  not  be  done.  And, 
moreover,  the  proof  did  not  establish  with  sufficient  certainty  the  fact  of  a  vari- 
ation of  the  original  contract,  waiving  the  question  of  its  competency. 

^  Bowyer  v.  Bright,  13  Price,  698  ;  M'Queen  v.  Farquhar,  11  Ves.,  467  ;  Stew- 
art V.  Marquis  of  Conyngham,  1  Jr.  Ch.,  573. 


§  415-  SLIGHT    DEFECTS    NOT    REGARDED.  555 

slight  misdescription  of  the  vendor's  interest ; '  or  the  ex- 
istence of  insignificant  liabilities  ; '  or  a  right  of  way  not 
affecting  the  beneficial  enjoyment  of  the  property.'  So, 
the  mere  possibility  or  a  vague  suspicion  of  a  defect  of  title, 
will  not  release  the  vendee.*  Questions  may  arise  with 
respect  to  the  title  which  must  depend  upon  circumstantial 
evidence ;  and  after  such  questions  are  settled  beyond  a 
reasonable  doubt,  there  is  still  a  possibility  of  a  defect. 
Yet  this  possibility  is  disregarded.  Sometimes  the  court 
will  presume  the  surrender  of  a  term,  or  the  discharge  of  a 
mortgage,  in  favor  of  the  validity  of  the  title.'  In  the  lan- 
guage of  Lord  Hardwicke,  "  the  court  must  govern  itself 
by  a  moral  certainty  ;  for  it  is  impossible,  in  the  nature  of 
things,  that  there  should  be  a  mathematical  certainty  of  a 
good  title."'  A  probability  of  litigation  to  render  a  title 
bad  for  this  purpose,  must  be  a  reasonable  probability.' 
Thus,  specific  performance  was  decreed,  although  there  was 
a  reservation  of  mines,  the  court  being  satisfied  that  there 
was  no  subject  matter  for  the  reservation  to  act  upon,  or 
that  the  alleged  right  to  exercise  it  had  ceased.'  So,  spe- 
cific performance  was  granted  against  a  purchaser,  where 
the  title  depended  upon  the  legality  of  a  purchase  by  a 
solicitor  from  his  client,  although  proof  of  the  validity  of 
the  transaction  was  given  in  the  absence  of  the  client,  who, 
it  was  argued,  might  have  other  evidence,  and  ultimately 
set  the  sale  aside."  Land,  which  belonged  to  a  person  de- 
ceased, having  been  sold  at  auction,  the  purchaser  found, 
upon  examining  the  title,  that  the  estate  had  not  been  ad- 


'  Forrer  v.  Nash,  35  Beav.,  167  ;  Rowland  v.  Norris,  i  Cox,  59. 
*Wood  V.  Bernal,  19  Yes.,  220  ;  Esdaile  v.  Stephenson,    i  Sim.  &  Stu.,  122  ; 
Portman  v.  Mill,  i  Russ.  &  M.,  696;  Winne  v.  Reynolds,  6  Paige  Ch.,  407. 
3  Oldfield  V.  Round,  5  Ves.,  508 ;  post,  §  427. 
^  Laurens  v.  Lucas,  6  Rich.  Eq.,  217. 

*  Hayes  v.  Harmony  Grove  Cemetery,  108  Mass.,  400. 

*  In  Lyddal  v.  Weston,  2  Atk.,  20.         '  Cattell  v.  Corrall,  4  Y.  &  C.  Ex.,  237. 
*Lyddal  v.  Weston,  supra  ;  and  see  Seaman  v.  Vawdrey,  16  Ves.,  393  ;  Mar- 
tin V.  Cotter,  3  Jon.  &  L.,  496. 

'  Spencer  v.  Topham,  22  Beav.,  573. 


556  ABSENCE,    OR    INSUFFICIENCY    OF    TITLE.  §  416. 

ministered  upon  ;  whereupon,  letters  of  administration  were 
taken  out.  There  was  no  evidence  tending  to  show  that 
any  debts  existed  against  the  estate,  and  the  possibility  that 
such  might  be  the  case,  would  be  extinguished  in  two 
years.  Moreover,  by  the  terms  of  sale,  half  of  the  pur- 
chase money  was  to  be  secured  by  mortgage,  which  would 
amply  secure  the  purchaser  against  such  a  possibility.  It 
was  held  that  there  was  not  such  a  cloud  on  the  title  as  to 
constitute  a  defence  to  a  suit  for  specific  performance 
against  the  purchaser.'  A.  sold  land  to  B.,  with  covenants 
of  general  warranty.  The  whole  tract,  out  of  which  this 
piece  was  sold,  had  been  previously  purchased  and  a  mort- 
gage given  thereon  for  the  purchase  money.  The  mort- 
gage had  never  been  recorded,  and  had  not  been  released, 
though  there  were  strong  reasons  for  believing  that  the 
mortgage  debt  had  been  paid.  It  was  held  that  A.  was 
entitled  to  a  decree  against  B.,  for  specific  performance.' 

§  416.  Presumption  of  title. — When  the  title  rests  on  a 
presumption,  and,  if  the  question  were  before  a  court  of 
law  it  would  be  the  duty  of  the  judge  to  direct  the  jury  to 
find  in  favor  of  it,  specific  performance  will  be  enforced  ;  but 
not  if  the  evidence  must  be  left  to  the  consideration  of  a 
jury.'  The  cases  in  which  a  doubt  as  to  a  fact  has  pre- 
vailed may  be  referred  to  this  principle.  As  where  the 
title  depends  upon  proof  that  there  is  no  creditor  who  can 
take  advantage  of  an  act  of  bankruptcy  committed  by  the 
vendor  ;  *  or  where  some  evidence  is  produced  by  the  ven- 
dor of  the  absence  of  notice  of  an  incumbrance  upon  which 
want  of  notice  the  title  depends  ; '  or  where  the  presump- 
tion is  derived  from  mere  possession.'  Where  there  had 
been  undisputed  possession  of  the  land  during  a  period  of 
sixty  years,  and  a  presumption  was  derived  from  a  recital 

*  Hayes  v.  Harmony  Grove  Cemetery,  supra. 
'  Richards  v.  Mercer,  i  Leigh,  125. 

'Emery  v.  Grocock,  6  Mad.,  54;  Barnwell  v.  Harris,  i  Taunt.,  430. 

*  Lowes  V.  Lush,  14  Ves.,  547.  '  Freer  v.  Hesse,  4  De  G.  M.  &  G.,  495. 

*  Eyton  V,  Dicken,  4  Price,  303. 


§  41 6.  PRESUMPTION    OF    TITLE.  557 

of  deeds  that  they  contained  nothing  adverse  to  the  title, 
it  was  held  that  the  mere  loss  of  the  deed  did  not  create  a 
reasonable  doubt/  And  where  a  title  depended  upon  the 
fact  that  no  execution  had  been  issued  upon  certain  judg- 
ments between  given  dates,  and  there  was  no  proof  of  any- 
thing which  could  be  referred  to  such  an  execution,  the  ti- 
tle was  held  good."  So,  specific  performance  will  be  granted 
when  the  title  depends  upon  the  invalidity  of  a  voluntary 
conveyance,  as  against  a  purchaser  for  a  valuable  considera- 
tion without  notice ;  the  court  acting  on  the  presumption 
that  the  conv^eyance  has  not  been  rendered  valid  by  subse- 
quent dealings.'  But  specific  performance  will  not,  in  gen- 
eral, be  decreed  in  favor  of  a  voluntary  settlor  against  a 
purchaser,  when  the  title  depends  upon  the  invalidity  of 
the  settlement.'  A  difficulty  in  the  way  of  assisting  the 
plaintiff  in  such  case  "  is,  that  he  has  no  equity  to  defeat 
the  act  w^hich  he  has  done  himself.  But  another  considera- 
tion which  has  weighed  in  such  cases,  is,  that  if  you  com- 
pel a  purchaser  to  take  an  estate  at  the  instance  of  such  a 
man,  you  cannot  be  quite  sure  that  there  may  not  have 
been  some  intermediate  acts  which,  by  matter  ex  post  facto, 
may  have  made  the  settlement  good,  which  in  its  origin 
was  not  good.'"  But  long  possession  of  the  purchaser, 
and  other  circumstances  tending  to  show  that  he  has  ac- 
quired a  good  title,  may  give  the  vendor  a  right  to  insist 
on  specific  performance.  Thus,  on  a  bill  by  a  vendor 
against  a  purchaser  for  specific  performance,  the  defendant 
having  set  up  a  voluntary  settlement  as  an  objection  to  the 
title,  it  appeared  that  he  had  been  in  undisturbed  possession 

1  Prosser  v.  Watts,  6  Mad.,  59  ;  Magennis  v.  Fallon,  2  Moll.,  561. 

-  Causton  v.  Macklew,  2  Sim.,  242. 

^  Butterfield  v.  Heath,  15  Beav.,  408  ;  Buckle  v.  Mitchell,  18  Ves.,  100.  A  gift 
to  an  unmarried  woman  for  life,  with  remainder  to  her  husband  in  fee,  vests  an 
indefeasible  estate  of  inheritance  in  the  person  who  first  answers  the  description 
of  her  husband.  And  where  in  such  a  case  the  husband  dies  after  devising  his 
interest  in  the  estate  to  his  wife  absolutely,  and  she  sells,  the  purchaser  will  be 
compelled  to  take  the  title.     Radford  v.  Willis,  L.  R.  7,  Ch,  7. 

*  Smith  V.  Garland,  2  Mer.,  123. 

*  Lord  Eldon  in  Johnson  v.  Legard,  T.  &  R.,  294. 


558  ABSENCE,    OR    INSUFFICIENCY    OF    TITLE.  §  4 1 7- 

of  the  premises  for  twenty  years,  had  paid  part  of  the  pur- 
chase money,  satisfied  a  mortgage  on  the  premises,  and  ob- 
tained a  conveyance  of  the  legal  estate  and  possession  of 
the  title  deeds,  and  it  was  held  that  the  vendor  was  entitled 
to  a  decree.' 

§  417.  Suspicions  circumstances  affecting  title. — Specific 
performance  will  not  be  enforced  against  a  purchaser,  when, 
although  there  is  no  proof  of  fraud,  circumstances  con- 
nected with  the  title  raise  a  suspicion  of  it,  and  the  good 
or  bad  faith  of  the  transaction  depends  upon  extrinsic  cir- 
cumstances. This  was  held  where  the  title  depended  on  a 
grant  of  chattels,  which  provided  for  the  grantor's  continu- 
ing conditionally  in  possession.  The  court,  without  deter- 
mining whether  such  a  deed  was  in  itself  fraudulent,  and 
an  act  of  bankruptcy,  refused  to  compel  the  purchaser  to 
accept  the  title,  because  its  validity  depended  upon  the 
question  whether  it  was  made  for  a  good  consideration  and 
in  good  faith,  and  these  were  circumstances  the  purchaser 
had  no  means  of  ascertaining.  "  My  opinion,  therefore, 
is,"  said  the  vice-chancellor,  "that  a  court  of  equity  ought 
not  to  compel  the  purchaser  to  accept  this  title ;  because, 
assuming  the  deed  not  to  be  fraudulent  ex  facie,  it  still 
may  be  avoided  by  circumstances  extrinsic,  which  it  is 
neither  in  the  powder  of  the  purchaser  or  of  this  court  to 
reach."'  But  the  doctrine  that  the  possibility  of  fraud  in 
extrinsic  facts  will  be  a  sufificient  objection  to  the  title,  has 
not  been  followed  to  its  full  extent.  Thus,  a  title  was  held 
good  under  a  deed,  which  might  possibly  have  been  proved 
invalid  by  extrinsic  evidence,  as  embracing  all  the  property 
of  the  grantor,  or  as  made  to  give  a  fraudulent  preference 
to  some  of  several  creditors,  or  as  made  in  contemplation 
of  bankruptcy  ;  there  being  no  apparent  ground  for  making 
any  of  these  objections.'      So,  where  the  vendor  claimed 

'  Peter  v.  Nicolls,  L.  R.  li,  Eq.  391. 

^  Hartley  v.  Smith,  Buck's  Bankr.  Cas.,  368,  per  Sir  John  Leach. 

="  Cattell  V.  Corrall,  4  Y.  &  C.  Ex.,  228. 


§  4l8-  WHERE    VENDEE    HAS    TAKEN    TOSSESSION.  559 

under  an  appointment  made  by  a  husband  and  wife  to  their 
oldest  daughter,  under  a  settlement  giving  them  successive 
life  estates,  with  remainder  to  their  children  as  they  should 
appoint,  and,  in  default  of  appointment,  between  such  chil- 
dren, and  it  appeared  that  the  parents  had  encumbered 
their  life  interests,  and  that  a  short  time  after  the  appoint- 
ment they  and  their  daughter  executed  a  mortgage,  it  was 
held  that,  although  these  circumstances  raised  a  suspicion 
of  fraud,  which  was  strengthened  by  a  notice  from  a 
younger  son  to  the  purchaser  not  to  complete,  and  that 
the  appointment  was  fraudulent,  yet  as  the  notice  alleged 
nothing  not  apparent  on  the  abstract,  and  was  not  followed 
by  any  proceedings,  there  was  not  a  sufficient  doubt  to  jus- 
tify the  court  in  withholding  a  decree  for  specific  perform- 
ance/ So,  it  has  been  held  in  England,  that  where  there 
are  no  circumstances  of  suspicion,  it  is  not  a  sufficient  ob- 
jection to  a  title  made  under  a  will,  that  the  will  has  not 
been  proved  against  the  heir,  or  he  does  not  join.''  We 
are  not  aware  that  such  an  objection  has  ever  been  raised  in 
this  country.  But  here,  the  fact,  without  explanation,  that 
a  will  of  real  estate,  through  which  a  title  was  derived,  had 
never  been  proved,  would  doubtless  be  regarded  by  a  pur- 
chaser unfavorably.  A  litigation  under  a  will  having  con- 
tinued thirteen  years  without  impeaching  its  validity,  and 
the  contestant,  who  had  claimed  under  another  will,  having 
withdrawn  his  opposition,  the  purchaser  was  compelled  to 
take  a  title  under  the  will.'  If  a  title,  in  the  absence  of 
special  circumstances,  be  irregular,  and  such  circumstances 
do  not  appear,  specific  performance  will  be  refused.' 

§  418.  Where  vendee  has  taken  possession. — The  maxim 
of  caveat  ejuptor  is  a  rule  of  the  common  law  applicable 
to  contracts  of  purchase  as  well  of    real  as  of   personal 

'Green  v.  Pulsford,  2  Beav.,  71.  And  see  M'Queen  v.  Farquhar,  11  Ves,, 
467;  Grove  v.  Bastard,  2  Phil.,  619;  S.  C.  i  De  G.  M.  &  G.,  69. 

'^  Colton  V.  Wilson,  3  P.  Wms.,  190;  Morrison  v.  Arnold,  19  Ves.,  670;  Wed- 
dall  V.  Nixon,  17  Beav.,  160. 

'  McCulloch  V,  Gregory,  3  K.  &  J„  12.  *  Blacklow  v.  Laws,  2  Hare,  40. 


560  ABSENCE,    OR    INSUFFICIENCY    OF    TITLE.  §  4^9- 

property,  and  is  adhered  to  both  in  courts  of  law  and  courts 
of  equity,  where  the  transaction  is  not  fraudulent.'  If  a 
purchaser  has  taken  a  warranty  deed,  and  been  put  in  the 
undisturbed  possession  of  the  premises,  without  any  fraud 
in  the  transaction,  he  cannot  be  relieved  in  equity  before 
eviction,  on  the  mere  ground  of  defect  of  title,  by  having 
the  contract  rescinded,  and  the  purchase  money  returned 
to  him ;  his  remedy  being  at  law  upon  the  covenant  of 
warranty  in  his  conveyance.  But  if  he  is  in  possession 
under  a  mere  equitable  title,  as  a  title  bond,  or  covenant  to 
convey,  and  the  vendor's  title  is  defective,  he  may  refuse  to 
make  payment,  and  have  the  contract  rescinded,  and  such 
purchase  money  as  he  may  have  paid  refunded."  And  it 
has  been  held  that  the  mere  acceptance  of  a  deed  will  not 
estop  the  vendee  from  controverting  his  grantor's  title/ 

§  419.  Right  of  vendee  to  zvithJiold  payment  in  the  ab- 
sence of  title, — In  this  country,  where  title  deeds  are  re- 
corded and  open  to  public  inspection,  when  a  contract  for 
the  sale  of  real  estate  is  silent  concerning  the  title,  it  is  to 
be  assumed  that  the  title  is  good,  and  it  is  incumbent  upon 
the  vendee,  if  he  questions  it,  to  show  the  defect.*    A  gen- 

'  A  purchaser  of  real  estate  is  not  bound,  in  order  to  guard  against  deception 
on  the  part  of  the  vendor,  to  have  a  survey  made,  unless  some  third  person  is  in 
possession  claiming  title,  or  there  is  a  dispute  as  to  boundaries,  or  he  has  reason 
to  suspect  fraud.  He  may,  in  general,  rely,  as  to  location  and  boundary,  on  old 
deeds.     Walsh  v.  Hall,  66  N.  C,  233. 

'^Buchanan  v.  Alwell,  8  Humph.,  516;  Walsh  v.  Hall,  supra.  Although 
when  the  contract  is  executory,  the  vendee  may  obtain  a  rescission  if  the  ven- 
dor has  no  title,  yet  where  the  contract  is  executed,  eviction  or  fraud  must  be 
shown  to  enable  a  court  of  equity  to  grant  relief  to  the  purchaser,  or  to  restrain 
the  collection  of  the  purchase  money.  Patton  v.  Taylor,  7  How.,  133;  Camp- 
bell v.  Medbury,  5  BisseJl,  33. 

^Averill  v.  Wilson,  4  Barb.,  180;  Finn  v.  Sleight,  8  lb.,  406  ;  Osterhout  v. 
Shoemaker,  3  Hill,  518;  Sparrow  v.  Kingman,  i  N.  Y.,  245;  S.  C,  12  Barb., 
208;  Gaunt  V.  Wainman,  3  Bing.  N.  C,  69;  Small  v.  Proctor,  15  Mass.,  499. 
Contra,  Hitchcock  v.  Harrington,  6  Johns,  290;  Collins  v.  Torry,  7  lb.,  278; 
Davis  V.  Darrow,  12  Wend.,  65;  Bowne  v.  Potter,  17  lb.,  164;  Sherwood  v. 
Vanderburgh,  2  Hill,  307  ;  Gayle  v.  Price,  5  Rich,  525  ;  Stimpson  v.  Thomas- 
ton  Bank,  28  Me..  259.  If  the  vendee  objects  to  the  title,  he  must  restore  pos- 
session to  the  vendor.     Cans  v.  Renshaw,  2  Pa.  St.,  34. 

*  Brown  v.  Bellows,  4  Pick.,  179;  Uwight  v.  Cutler,  3  Mich.,  56;  Allen  v. 
Atkinson,  21  lb.,  351.  When  the  vendee  of  land,  who  is  in  possession,  seeks 
to  resist  the  payment  of  the  purchase  money,  on  the  ground  that  his  vendor  can- 
not make  a  good  title,  for  the  reason  that  a  paramount  title  is  in  a  third  person, 


§  419-  "RIGHT  OF  VENDEE  TO  WITHHOLD  PAYMENT.     56 1 

eral  agreement  to  sell  real  estate  is  presumed  to  mean  the 
fee  simple,  and  equity  will  not  compel  a  purchaser  to  take 
a  life  estate.  Nor  will  he  be  obliged  to  take  an  estate  in 
which  the  vendor  had  no  interest  as  owner  at  the  time  of 
the  alleged  sale  ;  for  the  reason,  that  one  who  speculates  on 
that  which  is  not  within  his  control,  is  not  a  bona  fide  con- 
tractor, and  there  is  no  mutuality  between  the  parties.  But 
if  the  seller,  though  not  the  legal  owner,  has  an  equitable 
means  to  make  himself  so,  and  he  employs  that  means  suc- 
cessfully, though  after  his  contract  of  sale,  he  may  compel 
specific  performance.'  The  vendor  cannot  rescind  the  con- 
tract of  sale  on  account  of  delay  of  the  purchaser  in 
making  payment,  when  the  facts  throw  a  cloud  on  the  title 
and  render  it  suspicious.''  If  there  is  an  apparent  incum- 
brance of  record,  the  purchaser  has  a  reasonable  time  in 
which  to  satisfy  himself  whether  or  not  such  incumbrance 
is  valid.  Thirty  days  is  not  an  unreasonable  time  to  take 
for  this  purpose,  when  the  incumbrancer  resides  at  a  dis- 
tance, and  it  does  not  appear  that  the  situation  of  the 
parties  has  in  the  meantime  been  changed,  or  that  anything 
has  occurred  to  render  the  contract  less  fair  and  equal  than 
it  was  when  it  was  entered  into."  The  court  will  not  put 
the  vendee  oif  w^ith  the  personal  responsibility  of  the  ven- 
dor, on  a  breach  of  the  covenant  for  quiet  enjoyment,  but 
will  suspend  the  payment  of  the  purchase  money  until  de- 
fects in  the  title  are  removed,  and  will,  after  a  reasonable 
time,  at  the  instance  of  the  vendee,  rescind  the  contract. 
It  is  a  jurisdiction  in  the  nature  of  specific  performance, 
and,  in  the  meanwhile,  allowing  the  purchaser  to  hold  to 
the  security  he  has  in  the  purchase  money.*     But  although 

he  must  show  affirmatively  the  existence  of  such  paramount  title  by  clear  and 
satisfactory  evidence.  Cantrell  v.  Mobb,  43  Ga.,  193;  Sawyer  v.  Sledge,  55 
lb.,  152. 

'  Tiernan  v.  Roland,  1 5  Pa.  St.,  429 ;  Leigh  v.  Huber,  3  Watts,  367.  A  per- 
son cannot  substitute  himself  as  vendor  in  place  of  another,  against  the  will  of 
the  vendee.     Taylor  v.  Port-er,  i  Dana,  421. 

'■^  Snyder  v.  Spaulding,  57  111.,  480. 

^  Allen  V.  Atkinson,  21  Mich.,  351.     See  post,  §§  436,  442. 

*Kindley  v.  Gray,  6  Ired.  Eq.,  445  ;    Shaw  v.  Vincent,  64  N.  C,  69c.     When 

36 


562  ABSENCE,    OR    INSUFFICIENCY    OF    TITLE.  §  419- 

when  a  vendor,  acting  in  good  faith,  sells  land  to  which  he 
supposes  he  has  a  good  title,  on  which  the  vendee  enters 
and  makes  valuable  improvements,  and  the  vendor  after- 
ward ascertains  that  he  cannot  give  a  clear  title,  and  there 
is  no  prospect  that  the  title  can  be  perfected,  the  vendee 
will  be  compelled  to  elect,  without  much  dela}^,  whether  to 
receive  a  deed,  or  surrender  the  possession  of  the  premises ; 
yet  if,  w^ith  diligence,  the  title  can  eventually  be  cleared, 
the  court  will  give  relief  by  adapting  its  proceedings  to  the 
circumstances  of  the  case/  The  owner  of  land,  at  the 
time  of  entering  into  a  contract  for  its  sale,  supposed  that 
he  owned  the  whole  of  it,  but  afterward  discovered  that  he 
only  had  a  title  to  an  undivided  sixth.  The  vendee,  being 
apprized  of  this,  agreed  to  go  into  possession  until  the  ven- 
dor could  obtain  the  entire  property.  Subsequently,  the 
vendor  got  a  title  to  three  other  undivided  sixths  ;  but  the 
vendee  refused  to  accept  a  conveyance  of  anything  less 
than  the  w^ho.le.  Upon  a  bill  filed  by  the  vendor  for  spe- 
cific performance,  it  was  held  that  the  vendee  must  elect 


the  vendor  covenants  to  give  a  title  free  from  incumbrances,  the  purchaser  is 
not  bound  to  pay  his  money  and  receive  a  deed,  while  incumbrances  exist  agamst 
the  property.  Bishop  v.  Newton,  20  111.,  175  ;  Wallace  v.  McLaughlin,  57  lb., 
53.  But  a  purchaser  in  possession,  who  by  decree  directing  an  inquiry  as  to 
title,  and  declaring  the  purchase  money  a  lien  on  the  estate,  has  been  ordered 
to  pay  into  court  the  interest  on  his  purchase  money,  is  not  entitled  to  the  dis- 
missal of  a  bill  for  specific  performance,  although  the  plaintiff  cannot  show  a 
good  title,  if  it  appear  that  the  defendant,  since  the  purchase,  has  acquired  the 
means  of  curing  the  defect  in  the  title.     Hume  v.  Pocock,  L.  R.  i,  Eq.  662. 

'  Longworth  v.  Taylor,  i  McLean,  395.  The  purchaser  of  a  house  in  Lon- 
don, having  objected  to  the  title,  the  vendor,  in  1869,  filed  a  bill  for  specific  per- 
formance, and  obtained  the  usual  reference  as  to  title.  The  objections  were  . 
overruled,  but  before  the  certificate  had  been  signed,  the  purchaser  discovered 
in  a  wall  which  formed  one  side  of  the  house,  and  fronted  on  a  street,  a  stone 
with  an  inscription  dated  1776,  stating  that  the  wall  was  built  by  and  belonged 
to  the  East  India  Company,  which  had  thrown  the  adjoining  ground  into  the 
street.  It  was  ascertained  that  the  wall  was  rebuilt  in  1 831,  by  the  tenant  of 
the  house,  and  the  stone  reinserted ;  but  under  what  circumstances,  did  not  ap- 
pear. No  rent  had  from  that  time  been  paid  to  the  company,  nor  any  acknowl- 
edgment of  their  title  given  ;  but  their  successors,  upon  application  made  to 
them,  claimed  to  own  the  wall,  and  the  vendor  obtained  a  release  from  them. 
It  was  held  (overruling  the  decision  of  the  vice-chancellor),  that  the  vendor  had 
not  a  good  title  when  the  bill  was  filed,  he  not  having  acquired  a  title  by  ad- 
verse possession,  and  that  as  he  might,  with  reasonable  diligence,  have  informed 
himself  of  the  defect  before  selling,  he  was  not  entitled  to  costs.  Phillipson  v. 
Gibbon,  L.  R.  6,  Ch.  428. 


§  420.         TIME    ALLOWED    VENDOR    TO    MAKE    TITLE.  563 

either  to  accept  such  a  title  as  the  vendor  could  convey,  or 
abandon  the  contract  and  restore  possession.' 

§  420.    Tiiite  allowed  vendor  to  make  title. — The  vendor, 
to  entitle  himself  to  specific  performance  of  a  contract  of 
sale,  must  show  that,  in  good  faith,  and  within  the  proper 
time,  he  has  performed  the  obligations  which  devolved  on 
him  \''  or  that  he  is  ready  and  desirous  to  do  so.'     When  a 
purchaser  of   land   refuses   to  complete  the   purchase  on 
account  of  an  incumbrance  upon  the  premises,  he  should 
state  his  objection  to  the  vendor,  in  order  that  the  vendor 
may  have  an  opportunity  to  remove  it."    Mere  delay,  on  the 
part  of  the  vendor,  will  not  deprive  him  of  his  right  to  en- 
force the  contract,  unless  the  delay  has  been  unreasonable 
and  without  sufficient  excuse,  and  it  is  out  of  the  power  of 
th&  court  to  place  the  parties  in  the  condition  they  would 
have  occupied  if  the  contract  had  been  carried  out.'     A 
purchaser  of  real  estate  in  possession  under  the  contract, 
where  the  vendor  is  solvent,  and  the  sale  is  without  fraud, 
cannot  enjoin  a  recovery  of  the  purchase  money  on  the 
ground  that  the  vendor  has  not  a  good  title.     It  is  sufficient 
that  he  have  such  a  title  when  the  vendee  by  payment  or 
tender  of  the  purchase  money  places  himself  in  a  condition 
to  demand  a  title."    But  although  time  be  not  of  the  essence 
of  the  contract,  yet  if  a  party,  seeking  specific  performance, 
has  been  guilty  of  gross  laches,  or  has  been  inexcusably 
negligent  in  performing  the  contract  on  his  part,  or  if,  in 
the  intermediate  period,  there  has  been  a  material  change 

'  Davison  v.  Perrine,  22  N.  J.  Eq.,  87.  ^  Watts  v.  Waddle,  6  Pet.,  389. 

'  King  V.  Hamilton,  4  Pet.,  311  ;  Grundy  v.  Ford,  Litt.  Sel.  Cas.,  129;  Barnett 
V.  Higgins,  4  Dana,  565  ;  Seymour  v.  Delancey,  6  Johns  Ch.,  222.  A  person 
may  enter  into  a  contract  to  convey  land  to  which  he  has  no  title,  legal  or  equi- 
table. When  the  time  for  performance  arrives,  he  fulfils  tlie  obligation  if  he  in- 
duces him  who  has  the  title  to  convey  to  the  vendee.  Rutland  v.  Brister,  53 
Miss.,  683. 

*•  McWhorter  V.  McMahan,  10  Paige  Ch.,  386.  The  purchaser  must  use  reason- 
able diligence  in  ascertaining  the  state  of  the  title.  Havens  v.  Bliss,  26  N.  J. 
Eq.,  363. 

^  Cooper  V.  Brown,  2  McLean,  495  ;  McKay  v.  Carrington,  i  lb.,  50  ;  Snyder 
V.  Spaulding,  57  111.,  480. 

*  Blanks  v.  Walker,  54  Ala.,  117;  Hughes  v.  Hatchett,  55  lb.,  539. 


564  ABSENCE,    OR    INSUFFICIENCY    OF    TITLE.  §  42O. 

of  circumstances  affecting  the  rights,  interests,  and  obliga- 
tions of  the  parties,  equity  will  refuse  its  aid.'  Where  the 
receiver  of  a  partnership  offered  the  real  estate  for  sale,  and 
stipulated  that  the  purchasers  should  have  a  perfect  title,  but 
there  was  a  delay  of  about  four  months  before  a  good  title 
could  be  made,  and  the  purchasers  desired  the  property  for 
immediate  use,  and  w^ere  obliged  to  get  other  property  in 
its  place,  it  was  held,  in  a  suit  for  specific  performance 
brought  by  the  receiver,  that  the  petition  must  be  dismiss- 
ed/ Specific  performance  will  sometimes  be  decreed  in 
behalf  of  the  vendor,  when  he  is  prepared  to  comply  with 
his  covenants  at  the  hearing,  and  the  court  will  afford  him 
a  reasonable  time  to  remove  incumbrances  and  perfect  his 
title  ;^  but  not  unless  it  can  be  done  without  prejudice  to 
the  rights  of  the  vendee  ;  nor  where  the  defect  to  be  reme- 
died was  known  to  the  vendor  or  his  attorney  at  the  time 
of  the  contract,  and  was  concealed  from  the  purchaser  ;  * 
especially  if  the  settlement  of  contested  accounts  is  neces- 
sary to  ascertain  the  state  of  the  title."  It  has  been  held  in 
numerous  cases,  that,  when  time  is  not  of  the  essence  of 
the  contract,  to  give  the  vendor  of  real  estate  a  right  to  spe- 
cific performance,  it  is  not  necessary  for  him  to  show  that  he 
had  a  good  title  at  the  time  fixed  for  conveyance,  but  that 
it  is  usually  sufficient  if  he  is  able  to  give  a  good  title  at 
the  time  of  the  decree/     But,  although  it  is  not  a  matter 

1  Tieman  v.  Roland,  15  Pa.  St.,  429;  Funk  v.  McKeoun,  4  J.  J.  Marsh,  162, 

*  Parsons  v.  Gilbert,  45  Iowa,  33. 

*  Dressel  v.  Jordan,  104  Mass.,  407.  Where  objections  to  the  title  arise  dur- 
ing the  progress  of  the  suit  for  specific  performance  which  were  not  made  during 
the  negotiations,  the  vendee  will  not  be  excused  from  performing,  if  the  plaintiff 
is  able  and  willing  to  remove  them  when  first  pointed  out.  Dalzell  v.  Crawford, 
I  Pa.  L.  J.,  155. 

*  Christian  v.  Cabell,  22  Gratt.,  82.  Where  a  defect  in  the  title  of  which  the 
vendor's  solicitor  was  aware,  was  not  communicated  to  the  purchaser,  a  motion 
by  the  latter  to  be  relieved  from  the  contract  was  granted,  though  the  defect  was 
removed  previous  to  the  motion.  Dalby  v.  Pullen,  3  Sim.,  29.  See  Moroney  v. 
Townsend,  5  Phila.,  357. 

^  Sidebotham  v.  Barrington,  3  Beav.,  528;  Foster  v.  Hoggart,  14  Jur.,  757  ; 
Arnot  V.  Biscoe,  i  Ves.  Sen.  95. 

°  Hepburn  v.  Auld,  5  Cranch,  262 ;  Hepburn  v.  Dunlop,  i  Wheat.,  179 ;  2  lb., 
231  ;  Dubose  v.  James,  McMulJan  Eq.,  55  ;    Seymour  v.  Delancey,  3  Covven, 


^  420.  TIME    ALLOWED    VENDOR    TO    MAKE    TITLE,  565 

of  course  to  dismiss  a  bill  for  specific  performance  merely 
because  the  title  was  not  perfected  at  the  commencement 
of  the  suit,  yet  that  may  be  a  sufficient  reason  for  giving 
costs  to  the  defendant,  if  he  has  not  made  any  unreason- 
able objection  to  the  title.  Specific  performance  may  be 
decreed,  if  it  appears  by  the  report  of  the  master  that  a  per- 
fect title  can  be  made  at  the  time  of  making  such  report, 
unless  the  purchaser  has  been  materially  injured  by  the  de- 
lay.' If  a  good  title  can  be  made  at  any  time  before  the 
master's  report,  and  even  after  the  report,  and  the  vendor 
can  satisfy  the  court  that  he  can  make  a  good  title  by  clear- 
ing up  the  objections  reported  by  the  master,  the  court 
will  generally  make  a  decree  in  his  favor.'  Where  the  ven- 
dor had  procured  a  good  title  by  means  of  an  act  of  Par- 
liament more  than  a  month  after  the  master's  report,  it  was 
held  that  the  purchaser  could  not  be  discharged  from  the 

445;  Wilson  v.  Tappan,  6  Ohio,  172;  Cotton  v.  Ward,  3  Monr.,  305;  Westall 
V.  Austin,  5  Ired.  Eq.,  i  ;  Mays  v.  Swope,  8  Gratt.,  46;  Luckett  v.  Williamson, 
37  Mo.,  388;  Moss  V.  Hanson,  17  Pa.  St.,  370;  Mussleman's  Appeal,  65  lb., 
480 ;  Allerton  v.  Johnson,  3  Sandf.  Ch.,  72 ;  Brown  v.  Haff,  5  Paig-e  Ch.,  235  ; 
Winne  v.  Reynolds,  6  lb.,  407  ;  Jenkins  v.  Fahey,  73  N.  Y.,  355.  In  Langford 
V.  Pitt,  2  P.  Wms.,  629,  the  master  of  the  rolls  said  :  "  It  is  sufficient  if  the  party 
entering  into  articles  to  sell  has  a  good  title  at  the  tim.e  of  the  decree  ;  the  direc- 
tion of  the  court  being,  in  all  these  cases,  to  inquire  whether  the  seller  caji,  not 
whether  he  could,  make  a  title  at  the  time  of  executing  the  agreement.  In  the 
case  of  Lord  Stourton  v.  Sir  Thomas  Meers,  the  Lord  Stourton,  at  the  time  of 
the  articles  for  a  sale,  or  even  when  the  decree  was  pronounced,  could  not  make 
a  title,  the  reversion  in  fee  being  in  the  Crown.  And  yet  the  court  indulged  him 
with  time  more  than  once  for  the  getting  in  of  this  title  from  the  Crown,  which 
could  not  be  effected  without  an  act  of  Parliament  to  be  obtained  in  the  following 
session.  However,  it  was  at  length  procured,  and  Sir  Thomas  Meers  decreed  to 
be  the  purchaser.  Indeed,  it  would  be  attended  with  great  inconveniences,  were 
decrees  to  direct  an  inquiry  whether  the  contractor  to  sell  had,  at  the  time  of 
entering  into  such  contract,  a  title ;  for  thus  all  incumbrances  and  defects  must 
be  raked  into.  Wherefore,  it  has  been  thought  sufficient  to  answer  the  end,  if, 
at  the  time  of  the  decree  or  report,  the  seller  can  make  a  good  title."  Lord 
Eldon  said  that  it  was  impossible  to  deny  that,  upon  the  old  authorities,  specific 
performance  might  be  obtained,  if  the  title  could  be  made  good  before  the  report. 
Jenkins  v.  Hiles,  6  Yes.,  646.  In  a  subsequent  case  before  the  same  chancellor, 
the  motion  of  a  defendant  to  be  discharged  because  the  master  reported  that  a 
good  title  could  not  be  made,  w^as  refused,  the  plaintiff  having  meanwhile  ob- 
tained an  act  of  Parliament  to  enable  him  to  perfect  the  title.  Coffin  v.  Cooper, 
14  Yes.,  205. 

'  Dutch  Church  v.  Mott,  7  Paige  Ch.,  'j-j. 

^  2  Danl.  Ch.  Pr.,  1195  ;  Seton  v.  Slade,  3  Leading  Cas.  in  Eq.,  392  ;  72  Law 
Libr.,  14.  A  defect  of  title  may  be  cured  at  any  time  before  decree,  but  the  ven- 
dor must  pay  costs.  Lesesne  v.  Witte,  5  S.  C,  462  ;  Syles  v.  Kirkpatrick,  9  lb., 
265. 


566  ABSENCE,    OR    INSUFFICIENCY    OF    TITLE.  §  42O. 

contract.'  When  the  sale  is  under  a  decree,  the  court  can 
exercise  at  least  as  much  discretion  in  affording  the  vendor 
time  to  perfect  his  title  as  in  the  case  of  private  sales.'  It 
having  been  discovered  after  the  sale  of  an  estate  under  a 
decree,  and  'after  a  confirmation  of  the  report  of  sale,  that 
a  small  portion  of  the  estate  was  the  property  of  another 
person,  the  court  refused  to  discharge  the  purchaser  from 
his  contract  without  giving  the  vendor  an  opportunity  to 
acquire  a  title  to  that  portion.'  But  the  party  who  is  to 
convey  will  not  be  permitted  to  unnecessarily  delay  the 
conveyance.  The  purchaser  may  fix  a  reasonable  time 
within  which  he  will  expect  the  title  to  be  made  at  the 
peril  of  rescinding  the  agreement.'  Where  more  than  half 
a  year  had  elapsed  after  notice  that  the  purchaser  would 
not  accept  the  title  before  the  vendor  was  able  to  make  a 
good  title,  even  with  the  addition  of  a  bond  of  indemnity 
against  debts,  the  court  said  it  could  not  see  that  it  would 
be  equitable  to  compel  the  purchaser  to  accept  a  convey- 
ance, or  to  make  an  inquiry  as  to  the  vendor's  present  abil- 
ity to  give  a  clear  title.'  But,  in  all  cases,  it  is  sufficient 
that  a  seller,  upon  a  contract  entered  into  in  good  faith,  is 
able  to  make  the  stipulated  title  at  the  time  when,  by  the 
terms  of  the  agreement,  or  by  the  equities  of  the  particular 
case,  he  is  required  to  execute  a  conveyance.'  Where  a 
vendor  could  not  make  title  at  the  time  stipulated  in  the 
bond,  and  the  vendee  remained  in  the  uninterrupted  pos- 
session of   the  premises,  and  had  not  paid  the  purchase 

'  Coffin  V.  Cooper,  14  Ves.,  205.  ^  Daniel  v.  Leitch,  13  Gratt.,  195. 

*  Lechmere  v.  Brazier,  2  J.  &  W.,  287.     See  Brown  v.  Haff,  5  Paige  Ch.,  235. 

*  Thompson  v.  Dulles,  5  Rich.  Eq.,  370;  Young  v.  Rathbone,  16  N.  J.  Eq., 
224. 

*  Richmond  v.  Gray,  3  Allen,  25.  A  vendee  will  not  be  compelled  to  receive 
the  title,  although  he  has  performed  so  much  of  the  contract  as  to  give  him  a 
right  to  a  conveyance,  and  is  still  in  possession,  if  the  vendor  has  neglected  to 
make  title  until  the  circumstances  respecting  the  property  have  materially 
changed.  In  a  case  of  this  kind,  the  vendee  will  be  required  to  deliver  up  the 
land  and  account  for  the  rents,  upon  the  return  to  him  of  whatever  he  has  paid 
toward  the  purchase  money,  with  interest  and  the  cost  of  improvements.  Bry- 
ant V.  Lofftus,  I  Rob.  Va.,  12. 

®  Dressel  v.  Jordan,  104  Mass.,  407  ;  Thompson  v.  Myrick,  20  Me.,  205. 


§  42  1-  VENDOR    CANNOT    MAKE    TITLE.  567 

money,  it  was  held  to  be  no  objection  to  a  decree  for  spe- 
cific performance  at  the  instance  of  the  vendor.'  Under  a 
contract  to  convey  land  when  a  pending  suit  in  relation  to 
the  title  is  decided,  the  vendor  has  all  the  time  which  may 
be  necessary  to  close  the  litigation.''  A  contract  was  en- 
tered into  for  the  sale  of  certain  lots  to  a  railroad  company, 
the  price  to  be  determined  by  three  persons  chosen  by  the 
parties,  a  perfect  title  to  be  conveyed,  and  the  purchase 
money  paid  within  ten  days  after  notice  of  the  award.  Al- 
though a  deed  containing  a  covenant  against  incumbrances 
was  tendered  within  the  ten  days,  yet  there  was  a  small 
mortgage  on  the  property  which  was  paid  off  eighteen 
days  after  the  award  and  previous  to  the  commencement 
of  the  suit.  It  was  held  that  there  was  nothing  in  the 
omission  to  make  a  perfect  title  on  or  before  the  day  fixed, 
to  prevent  a  court  of  equity  from  decreeing  specific  per- 
formance of  the  contract,  provided  such  title  could  be 
made  at  the  rendering  of  the  decree.^  Where  a  good  title 
cannot  be  made  at  the  time  agreed,  the  vendor  will  be  left 
in  possession  of  the  rents  and  profits  until  a  good  title  is 
shown,  and  from  that  time  he  will  have  a  right  to  the  in- 
terest on  the  purchase  money,  and  the  purchaser  to  the 
rents  and  profits.* 

§  421.  Knowledge  of  vendee  that  vendor  cannot  make 
title. — Of  course,  a  contract  for  the  purchase  of  real  estate 
which  is  in  fact  owned  by  a  third  person,  the  legal  title 
being  merely  held  by  the  vendor  as  a  security  for  a  loan, 
cannot  be  specifically  enforced,  as  the  purchaser  cannot  be 
placed  in  a  better  position  than  the  vendor.'     But  knowl- 


'  Kennedy  v.  Wolfolk,  3  Hayw.,  Tenn.,  190. 

*  Watts  V.  Waddle,  i  McLean,  200. 

'  Viele  V.  Troy  &  Boston  R.R.  Co.,  21  Barb.,  381. 

*  Lombard  v.  Chicago  Sinai  Congregation,  75  111.,  271. 

^  Franz  v.  Orton,  75  111.,  100 ;  Hill  v.  Fiske,  38  Me.,  520 ;  Love  v.  Cobb,  63 
N.  C,  324  ;  Mills  V.  Van  Voorhis,  23  Barb.,  25.  So,  equity  will  not  decree 
specific  performance  of  a  deed,  by  the  administrator  of  the  vendor  who  has 
executed  a  title  bond  to  make  a  deed  to  the  vendee  upon  proof  that  the  purchase 
money  had  been  paid,  where  it  appears  that  the  testator  had  made  a  valid  sale 


568  ABSENCE,    OR    INSUFP'ICIENCY    OF    TITLE.  §  422. 

edge  on  the  part  of  the  purchaser,  at  the  time  of  the  con- 
tract, that  the  title  is  defective,  will  not  deprive  him  of  the 
right  to  equitable  relief.  A.  sold  land  to  B.,  and  gave  him 
a  bond  to  make  a  good  title  in  three  years,  B.  knowing 
that  the  title  was  in  the  United  States.  B.  agreed  to  pay 
for  the  land  in  cash,  and  real  estate  to  part  of  which  he  had 
no  title.  The  title  to  the  land  not  being  made  by  A.  ac- 
cording to  asrreemcnt,  it  was  held  that  he  must  refund  the 
money  paid  him  by  B.,  with  interest,  and  pay  B.  the  value 
of  such  of  the  land  conveyed  to  him  by  B.  as  the  latter 
owned.'  Where  a  vendor,  when  he  entered  into  a  contract 
for  the  sale  of  land,  could  not  make  a  good  title,  which  was 
known  to  the  vendee,  and  the  latter  took  possession,  which, 
however,  he  abandoned  upon  the  failure  of  the  vendor  to 
complete  at  the  time  agreed,  it  was  held  that  the  fact  that 
the  vendee  knew  that  the  title  was  defective,  was  not  a 
ground  for  compelling  him  to  receive  such  title  as  the  ven- 
dor could  give.'' 

§  422.  Defective  title  as  to  portion  of  subject  of  sale. — 
With  regard  to  that  which  is  not  absolutely  essential  to  the 
enjoyment  of  the  property,  and  is  but  a  small  adjunct  to 
the  purchase,  the  court,  if  a  good  title  cannot  be  made  to 
the  adjunct,  may  direct  an  inquiry  to  ascertain  w^hether  it  is 
essential  to  the  enjoyment  of  the  whole.  If  it  is,  the  con- 
tract cannot  be  enforced,  and  the  parties  will  be  left  to 
their  remedy  at  law.'     But  if  it   is  not,  the  court  will  de- 


of  the  same  land  prior  to  the  giving  of  the  title  bond,  of  which  the  vendee  had 
notice  when  he  purchased.     White  v.  Gilbert,  39  Miss.,  802. 

'  Rector  v.  Price,  i  Mo„  373. 

2  Jackson  v.  Ligon,  3  Leigh,  161.  But  where  the  purchaser  of  land  knew  of 
an  incumbrance  upon  it  at  the  time  of  the  purchase,  he  was  compelled  to  take 
the  title  subject  to  such  incumbrance,  though  it  was  not  mentioned  in  the  con- 
tract. Winne  v.  Reynolds,  6  Paige  Ch.,  407  ;  and  see  Vincent  v.  Berry,  46 
Iowa,  571. 

'McKeanv.  Read,  Litt.  Sel.  Cas.,  395;  Reed  v.  Noe,  9  Yerg.,  283;  Bell- 
ringer  V.  Blagrave,  i  De  G.  &  S.,  63  ;  Tolson  v.  Sheard,  L.  R.  5.  Ch.  D.  19. 
When  a  power  to  lease  is  exercised  in  excess  of  the  power,  an  execution  of  the 
lease  will  not  be  compelled,  unless  the  party  is  willing  to  take  the  lease  to  the 
extent  of  the  power.  Harnett  v.  Yielding,  2  Sch.  &  Lef.,  548  ;  Neale  v.  Mac- 
kenzie, I  Keen,  474. 


§  42  2.         PORTION  OF  SUBJECT  OF  SALE.  569 

cree  specific  performance.'  Several  parcels  of  land  lying 
together  having  been  sold  at  auction,  the  vendor  delayed 
nearly  three  years  to  execute  a  conveyance,  although  re- 
peatedly solicited  to  do  so  by  the  purchaser.  It  was  after- 
ward ascertained  that  the  vendor  had  no  title  to  one  of  the 
tracts,  and  the  vendee  refused  to  complete  the  purchase  on 
that  ground.  In  a  suit  brought  by  the  vendor  for  specific 
performance,  it  was  held  that  as  it  had  not  been  shown  that 
the  purchase  was  chiefly  with  a  view  to  that  particular  tract, 
the  contract  must  be  performed  with  a  deduction  of  inter- 
est on  account  of  the  delay.'  In  many  cases,  where  the 
title  proves  defective  in  part,  or  to  an  extent  not  very 
essential,  specific  performance  will  be  decreed  with  a  ratable 
deduction  of  the  purchase  money,  by  way  of  compensation 
for  the  deficiency.  The  good  sense  and  equity  of  the  law 
on  this  subject  is,  that  if  the  defect  of  title,  whether  in 
lands  or  chattels,  be  so  great  as  to  render  the  thing  sold 
unfit  for  the  use  intended,  and  not  within  the  inducement 
to  the  purchase,  the  vendee  ought  not  to  be  held  to  the 
contract,  but  left  at  liberty  to  rescind  it ;  while,  on  the 
other  hand,  a  defect  which,  though  it  may  deprive  the  pur- 
chaser of  a  portion  of  the  thing  bargained  for,  still  leaves 
substantially  what  he  sought  by  the  contract,  should  not 
acquit  him  of  obligation  to  fulfil.'  Where  a  person  bought 
several  lots  of  land  to  two  of  which  no  title  could  be  made, 
and  it  did  not  appear  whether  the  lots  were  so  connected 
as  to  render  those  to  which  there  was  no  title  necessary  to 
the  enjoyment  of  the  others.  Lord  Kenyon  said  that  both 

'Cunningham  v.  Sharp,  11  Humph.,  116. 

'^  Osborne  v.  Bremar,  i  Dessaus  Eq.,  486.  Where  a  person  agreed  to  sell 
four  lots  for  a  certain  sum  in  cash,  and  the  residue  in  instalments,  and,  on  the 
day  fixed  for  the  performance  of  the  contract,  the  vendee  tendered  payment  ac- 
cording to  agreement,  and  demanded  title  to  the  lots,  whereupon  the  vendor 
offered  to  give  such  title  as  he  had,  and  admitted  that  he  had  no  title  to  one  of 
the  lots  (which  facts  were  set  forth  in  a  bill  for  specific  performance,  and  ask- 
ing an  accounting  to  ascertain  the  value  of  the  lot),  it  was  held  that  the  bill  was 
good  on  demurrer.     Mathews  v.  Patterson,  2  How.  Miss.,  729. 

^  Evans  v.  Kingsberry,  2  Rand,  20 ;  Stockton  v.  Union  Oil  Co.,  4  W.  Va., 
273  ;  Foley  v.  Crow,  37  Md.,  51.  This  is  the  principle  alluded  to  by  Pothier, 
and  repeated  by  Lords  Erskine  and  Kenyon. 


570  ABSENCE,    OR    INSUFFICIENCY    OF    TITLE.  §  422. 

parties  were  to  blame  ;  the  purchaser,  in  resisting  the  con- 
tract ill  toto  ;  and  the  seller  in  insisting  on  it  in  toto.  He  said 
he  was  bound  to  suppose  that  the  lots  to  which  no  title 
could  be  made  were  not  of  sufficient  importance  to  make 
the  loss  of  them  a  reason  for  vacating  the  agreement  as  to 
the  remainder,  and  he  accordingly  decreed  performance  pro 
taftto.'  A  man  having  an  estate  for  life  in  land,  and  his 
wife  the  remainder  in  fee,  not  subject  to  the  control  of  her 
husband,  he  contracted  to  sell  the  fee.  Afterward,  the 
husband  and  wife  united  in  conveying  the  fee  to  a  third 
person  who  had  full  knowledge  of  the  previous  contract. 
It  was  held  that  the  purchaser  was  entitled  to  have  the  in- 
terest of  the  husband  conveyed  to  him,  with  compensation 
for  the  wife's  interest. °  Where,  however,  a  husband  and 
wife  united  in  an  agreement  to  convey  the  wife's  estate  in 
fee  simple,  which  the  wife  subsequently  refused  to  do,  it 
was  held  that  the  purchaser  could  not  compel  the  husband 
to  convey  his  interest  in  right  of  his  wife,  he  having  only 
contracted  with  respect  to  the  wife's  estate.'  A.  having 
entered  into  a  contract  with  B.  to  sell  him  certain  land,  B. 
took  possession,  made  valuable  improvements,  and  paid 
part  of  the  purchase  money.  It  being  afterward  ascer- 
tained that  A.  had  no  title  to  a  portion  of  the  land,  there 
having  been  a  mutual  mistake  as  to  quantity,  it  was  held 
that  A.  was  bound  to  convey  to  B.  the  land  actually  owned 
by  him,  and  make  a  ratable  deduction  from  the  price  for 
the  deficiency.*  Where  a  person  contracted  to  sell  the  en- 
tire interest  in  property,  and  it  was  found  that  he  only 
owned  an  undivided  moiety,  it  was  held  that  the  purchaser 
was  entitled  to  that  moiety,  with  an  abatement  of  one-half 
of  the  purchase  money.'    Cases  may  occur  in  which  the  court 

'  Poole  V.  Shergold,  2  Bro.  C.  C,  118.         « Barnes  v.  Wood,  L.  R.  8,  Eq.  424. 

'  Castle  V.  Wilkinson,  L.  R.  5,  Ch.  534. 

*  Voorhees  v.  De  Myer,  3  Sandf.  Ch.,  614. 

'Hooper  V.  Smart,  L.  R.  18,  Eq.  683.  See  Western  v.  Russell,  3  V.  &  B., 
187.  But  the  vendor  could  not  compel  the  vendee  to  take  a  less  interest  than  he 
bargained  for.  Luckett  v.  Williamson,  31  Mo.,  54.  Where  a  person  contracted 
for  the  sale  of  a  house  and  lot,  and  title  to  only  half  of  the  property  could  be 


§  423-        WHEN  TITLE  TO  BE  TAKEN  WITH  INDEMNITY.  57 1 

will  not  compel  the  vendor  to  convey  such  estate  as  he  can, 
but  will  act  on  the  principle  of  not  enforcing  a  contract 
the  performance  of  which  would  be  unreasonable,  or  prej- 
udicial to  persons  interested  in  the  property  not  parties  to 
the  contract/ 

§  423.  When  title  to  be  taken  with  indemnity. — Al- 
though equity  will  not  force  a  vendee  to  take  a  defective 
title,  it  will  compel  him  to  take  a  good  title  subject  to  a 
pecuniary  charge  against  which  adequate  security  is  given.' 
When  compensation  in  money  or  by  abatement  from  the 
price  is  inappropriate  or  inconvenient,  the  court  will  some- 
times grant  specific  performance  as  far  as  it  can  be  done, 
with  indemnity  against  risk  from  the  imperfect  perform- 
ance. This  was  done  where  the  indemnity  was  against  a 
small  rent  chargeable  upon  the  premises  in  common  with 
other  property."  So,  the  purchaser  of  a  lease,  with  benefit 
of  renewal,  was  held  entitled  to  an  indemnity  against  the 
risk  of  not  obtaining  the  renewal,  which,  as  shown  in  the 
particulars  of  sale,  could  not  be  assured  to  him  by  the  ven- 
dor." Where  land  was  sold  free  of  incumbrances,  and  it 
was  found  to  be  subject  to  the  right  of  dower  of  the  ven- 
dor's wife,  the  vendee  was  held  entitled  to  specific  perform- 
ance, and  the  court  directed  that  a  portion  of  the  purchase 
money  should  be  set  aside  sufficient  to  meet  the  contin- 
gency of  dower  as  an  indemnity,  the  vendor  to  be  allowed 
the  interest  until  the  contingency  determined.'    In  another 

obtained,  it  was  held  that  specific  performance  should  not  be  decreed.  Terrell 
V.  Farrar,  Walk.  Tvliss.,  417.  And  one  who  contracted  for  six  hundred  and 
eighty-six  acres  of  land,  the  title  to  two  hundred  and  nine  acres  of  which  was 
found  to  be  defective,  was  held  not  bound  to  take  the  residue.  Jackson  v.  Li- 
gon,  3  Leigh,  161.  Where  a  person  having  a  term  agrees  to  sell  the  fee,  al- 
though he  cannot  oblige  the  purchaser  to  take  the  term,  yet  the  purchaser  can 
compel  him  to  convey  it  upon  equitable  conditions.  Wood  v.  Griffith,  i  Swanst., 
54.  So  of  the  sale  of  a  fee  by  one  entitled  to  the  remainder  in  fee  subject  to  a 
life  interest.     Nelthorpe  v.  Holgate,  i  Coll.  C.  C,  203. 

'Thomas  v.  Bering,  i  Keen,  747.        ^Thompson  v.  Carpenter,  4  Pa.  St.,  132. 

2  Halsey  v.  Grant,  13  Ves.,  73.  *  Milligan  v.  Cooke,  16  Ves.,  i. 

*  Wilson  v.  Williams,  3  Jur.  N.  S.,  810.  But  where  the  alleged  inchoate  right 
of  dower  was  questionable,  the  land  being  partnership  property,  it  was  held  that 
unless  the  plaintiff  was  willing  to  take  the  title  subject  to  the  claim  of  the  wife, 
and  pay  the  stipulated  price,  he  must  resort  to  his  legal  remedy  for  damages 
sustained  by  the  defendant's  breach  of  contract.  Dixon  v.  Rice,  16  Hun.,  422. 


572  ABSENCE,    OR    INSUFFICIENCY    OF    TITLE.  §  424. 

case,  the  contract  being  for  a  lease  with  the  usual  cove- 
nants, and  it  appearing  that  there  were  mines  under  the 
demised  premises  to  which  the  lessor  had  no  title,  it  was 
held  that  he  must  execute  the  lease,  with  the  usual  cove- 
nant for  quiet  enjoyment/  Where  a  contract  was  entered 
into  for  the  purchase  of  real  estate  for  fifty  thousand  dol- 
lars, and  it  afterward  appeared  that  there  was  a  mortgage 
OY\  it  for  one  thousand  dollars,  which  sum,  with  interest  to 
the  day  of  its  payment,  when  it  fell  due  the  vendor  offered 
to  deduct  from  the  purchase  money,  it  was  held  that  the 
incumbrance  was  not  a  ground  for  a  refusal  by  the  vendee 
to  perform.'  But  the  court  cannot  decree  that  the  pur- 
chaser, instead  of  a  perfect  title,  shall  receive  an  imperfect 
one,  and  an  indemnity  against  the  title  of  a  claimant ; '  nor 
an  indemnity  against  liabilities  which  endanger  the  posses- 
sion ;  as  where  leasehold  property  is  sold  subject  to  the 
covenants  in  a  superior  lease,  a  breach  of  which  will  cause 
a  forfeiture.*  So,  the  purchaser  will  not  be  compelled  to 
take  an  indemnity  against  an  outstanding  judgment  debt 
to  the  amount  of  half  of  the  purchase  money ; '  nor  to  take 
an  indemnity  where  there  is  a  material  variance  between 
the  particulars  of  sale  and  the  property  which  cannot  be 
made  the  subject  of  compensation." 

§  424.  Waiver  by  vendee. — The  obligation  of  the  ven- 
dor to  make  a  clear  title,  being  intended  for  the  benefit  of 
the  purchaser,  the  latter  may,  of  course,  if  he  choose,  waive 
any  defect."  Such  waiver  may  be  implied.  If  a  purchaser 
of  real  estate,  knowing  of  defects  in  the  title,  which  are  ca- 
pable of  being  removed  or  compensated,  goes  into  posses- 
sion without  objection  thereto,   it  operates  as   a  waiver." 

'  Onion  v.  Cohen,  2  H.  &  M.,  354.  '  Guynet  v.  Mantel,  4  Duer,  86. 

^  Bryan  v.  Read,  i  Dev.  &  Batt.  Eq.,  78.       ^  Fildes  v.  Hooker,  3  Mad.,  193. 

*  Wood  V.  Bernal,  19  Ves.,  220.  "  Ridgvvay  v.  Gray,  i  M.  &  G.,  109. 
'  Bennett  v.  Fowler,  2  Beav.,  302.     A  person  who,  having  a  contract  for  the 

conveyance  of  real  estate,  permits  the  vendor  to  give  a  deed  of  trust  of  the  prop- 
erty empowering  the  trustee  to  sell  if  required  for  the  payment  of  certain  debts, 
thereby  waives  all  right  to  a  conveyance,  or  at  any  rate  subordinates  such  right 
to  that  of  the  trustee  and  his  grantee.     Preston  v.  Preston,  5  Otto,  200. 

•  Guynet  v.  Mantel,  supra. 


§  424*  WAIVER    BY    VENDEE.  573 

The  vendee  may  agree  to  take  the  land  at  his  own 
risk,  in  which  case  the  inabiUty  of  the  vendor  to  make 
a  title  will  not  justify  the  withholding  of  the  purchase 
money/  But  the  purchaser  will  not  be  compelled  to  ac- 
cept a  defective  title  where  he  has  taken  possession  of  the 
property  and  made  important  changes  in  it,  if  it  was  agreed 
by  the  parties  that  he  should  enter  before  the  examination 
of  the  title,  and  he  abandons  the  premises  as  soon  as  he 
finds  that  a  good  title  cannot  be  made.''  Where  there  is 
no  fraud,  and  both  parties  are  acquainted  with  the  contents 
and  character  of  the  instrument,  it  cannot  be  reformed  in 
equity  merely  on  the  ground  that  one  of  the  parties  would 
have  insisted  upon,  and  been  entitled  to,  a  different  instru- 
ment, if  he  had  known  what  he  afterward  ascertained. 
Where,  therefore,  a  person,  under  a  parol  agreement  for  the 
purchase  of  land  with  a  good  title  and  a  deed  of  warranty, 
having  paid  the  purchase  money,  is  offered  a  deed  without 
covenants,  which  he  at  first  refuses  to  accept,  but  afterward 
takes  a  quit-claim  deed,  goes  into  possession,  and  makes 
valuable  improvements,  and  an  incumbrance  on  the  prop- 
erty, unknown  to  both  parties,  is  subsequently  discovered, 
he  is  not  entitled  to  equitable  relief.  In  such  a  case  the. 
title  to  the  land  passes  under  the  deed  and  the  original  con- 
tract is  merged  in   it.      After  a  contract  has    thus   been 


'  Brasher  v.  Gratz,  6  Wheat.,  528.  When  the  vendor  sells  with  all  faults,  and 
only  such  an  interest  as  he  has,  the  court  will  not  direct  an  inquiry  as  to  title. 
Southby  V.  Hutt,  2  My.  &  Cr.,  207,  212.  And  see  Andersen  v.  Higgins,  i  John. 
&  L.,  718.  A  proceeding  in  behalf  of  an  administrator  to  sell  the  land  of  his 
intestate  is  a  proceeding  m  rem,  and  a  judicial  sale  to  which  the  doctrine  of 
caveat  emptor  applies.  The  purchaser  buys  at  his  peril,  and,  in  the  absence  of 
fraud,  mistake,  or  ignorance  of  any  material  fact,  he  must  pay  the  purchase 
money,  even  though  he  get  no  title.  Burns  v.  Hamilton,  33  Ala.,  210;  Garrett 
V.  Lynch,  45  lb.,  204.  Where  land  is  conveyed  without  warranty,  and  there  is 
no  fraud  or  concealment  of  facts  on  the  part  of  the  grantor,  the  grantee  cannot, 
in  law  or  equity,  recover  back  the  purchase  money  upon  the  failure  of  title. 
Botsford  V.  Wilson,  75  111.,  132;  Story's  Eq.  Juris.,  Sees.  140,  141.  Although  if 
a  vendor  conveys  in  fee  land  to  which  he  has  no  title,  and  to  which  he  afterward 
acquires  title,  the  title  thus  acquired  inures  to  the  benefit  of  the  vendee,  yet  this 
is  not  the  case  where  a  quit-claim  is  given,  accompanied  by  an  independent  and 
qualified  covenant  of  warranty  against  a  specified  adverse  claim.  Quivey  v.  Ba- 
ker, 37  Cal.,  465. 

2  Richmond  v.  Gray,  3  Allen,  25. 


•  74  ABSENCE,    OR    INSUFFICIENCY    OF    TITLE.  §  424. 

fully  performed,  there  is  no  jurisdiction  in  equity  to  decree 
a  second  performance.'  The  vendee  of  land  cannot  put 
off  the  payment  of  the  purchase  money  until  a  suit  for 
eviction  is  determined,  when  the  nature  of  the  title  on 
which  such  suit  is  based  was  fully  communicated  to  him  at 
the  time  of  sale.' 

'  Whittemore  v,  Farrington,  76  N.  Y.,  452;  Bates  v.  Delavan,  6  Paige  Ch., 
300,  307;  Burwell  v.  Jackson,  9  N.  Y.,  535.  See  Wilson  v.  Deen,  74  lb.,  531. 
Where  a  purchaser  of  land,  having  the  uninterrupted  possession,  by  his  own 
fault  prevented  the  title  from  being  conveyed,  the  court  compelled  him  to  per- 
form the  contract,  although  before  the  bill  was  filed  he  had  obtained  judgment 
for  breach  of  covenant.  Hughes  v.  McKinsey,  5  T.  B.  Mon.,  38.  If  a  contract 
for  the  sale  of  land  clear  of  all  incumbrances  provides  that  it  shall  be  forfeited 
if  the  purchaser  fails  to  make  his  payments  at  the  time  agreed,  and,  the  land  be- 
ing incumbered,  the  vendor  cannot  perform  his  part  of  the  contract  by  giving  a 
perfect  title,  a  forfeiture  cannot  be  declared  upon  failure  of  the  vendee  to  meet 
his  payments  ;  but  the  latter  may  waive  his  right  to  a  clear  title,  tender  the  bal- 
ance due,  and  compel  a  specific  performance  of  the  contract.  Wallace  v.  Mc- 
Laughlin, 57  111 ,  53. 

^  Boisblanc  v.  Markey,  21  La.  An.,  721. 


CHAPTER   XIV. 

NON-PERFORMANCE    OF    PLAINTIFF. 

425.  General  rule  as  to  the  necessity  of  performance  by  plaintiff, 

426.  Fulfilment  of  promises  made  at  the  time  of  the  contract. 

427.  Default  of  plaintiff  in  immaterial  matter. 

428.  Non-performance  of  separate  and  distinct  contract. 

429.  Unessential  act  not  required. 

430.  Performance  of  part,  and  inability  as  to  residue. 

431.  Where  defendant  has  incurred  liabilities  for  plaintiff. 

432.  In  cases  of  marriage  contracts. 

433.  Bankruptcy  or  insolvency  of  plaintiff. 

434.  Non-performance  of  condition. 

435.  When  condition  precedent  relieved  against. 

436.  Rule  as  to  performance  at  time  stipulated. 

437.  Relief  against  breach  of  condition  subsequent. 

438.  Necessity  of  tender. 

439.  What  deemed  a  sufficient  offer  to  perform. 

440.  Tender  of  less  than  the  amount  agreed. 

441.  Payment  into  court. 

442.  Failure  to  perform  or  tender  performance  at  day  agreed. 

443.  When  performance  or  offer  to  perform  a  condition  precedent. 

444.  Where  the  undertakings  of  the  parties  are  dependent. 

445.  Demand  of  performance. 

446.  Where  a  tender  would  be  useless. 

447.  Offer  to  perform  after  commencement  of  suit. 

448.  Preparation  and  tender  of  conveyance. 

449.  Waiver  of  performance  by  vendor. 

450.  Waiver  by  vendee. 

§  425.  Performance  or  offer  to  perform  in  general  to  be 
shown. — When  a  suit  is  brought  for  specific  performance, 
it  is  often  material  to  consider  how  far  the  corresponding 
obligations  of  the  plaintiff  have  been  fulfilled.  If  they  have 
been  disregarded,  or  are  incapable  of  being  substantially 
carried  out,  a  court  of  equity  will  not  interfere  in  his  behalf.* 
This  principle  was  partially  discussed  in  the  preceding  chap- 
ter, with  reference  to  the  title,  and  as  applicable  more  par- 
ticularly to  a  vendor  of  real  estate.  The  obviously  reason- 
able proposition  was  there  laid  down  and  illustrated,  that 

'  Marble  Co.  v.  Ripley,  10  Wall,  339  ;  Brady's  Appeal,  66  Pa.  St.,  277  ;  Cham- 
bers V.  Livermore,  15  Mich.,  381  ;  Crane  v.  De  Camp,  21  N.  J.  Eq.,  414. 


5^6  NON-PERFORMANCE    OF    PLAINTIFF.  §  425. 

one  who  contracts  for  the  purchase  of  land,  is  entitled  to 
what  he  bargained  for,  before  he  can  be  compelled  to  part 
with  the  consideration  he  agreed  to  pay,  and  that  the  ability 
of  the  vendor  to  make  a  valid  conveyance,  should  exist  when 
his  duty  to  do  so  arises  under  the  contract,  or  at  the  time  of 
a  decree  for  a  conveyance  where  time  is  not  of  the  essence 
of  the  contract.'  The  same  doctrine  in  its  broader  aspects, 
as  embracing  both  parties  to  the  contract,  and  a  failure  to 
fulfil  on  the  part  of  either,  from  unwillingness  as  well  as 
from  inability,  is  now  to  be  considered.  It  is  a  rule,  subject 
to  such  qualifications  as  will  be  noted  presently,  that  one 
who  seeks  to  enforce  a  contract,  is  bound  to  show  a  per- 
formance, or  a  willingness  and  offer  to  perform,  on  his  part, 
all  that  is  called  for  from  him  by  the  contract,  either  then 
or  thereafter ;  and  that  if  he  make  default,  it  will  be  a  de- 
fence to  his  suit.'    The  holder  of  a  note,  who  had  obtained 

'  Buchanan  v.  Lorman,  3  Gill,  51  ;  McKean  v.  Read,  Litt.  Sel.  Cas.,  395. 

^  More  V.  Skidmore,  6  Litt.,  453;  Clay  v.  Turner,  3  Bibb.,  52  ;  Boone  v.  Mis- 
souri Iron  Co.,  17  How.,  340;  Garretson  v.  Vanloon,  3  Iowa,  128  ;  Vennum  v. 
Babcock,  13  lb.,  194;  Greenup  v.  Strong,  i  Bibb.,  590;  Bearden  v.  Wood,  i  A. 
K.  Marsh,  450  ;  Logan  v.  McChord,  2  lb.,  224  ;  Rogers  v.  Saunders,  16  Me.,  92  ; 
Wright  V.  Delafield,  23  Barb.,  498;  Stewart  v.  Raymond,  15  Miss.,  568  ;  Tyler 
V.  McCurdle,  17  lb.,  230;  Earl  v.  Halsey,  14  N.  J.  Eq.,  332  ;  Thorp  v.  Pettit,  16 
lb.,  488;  Colson  V.  Thompson,  2  Wheat.,  336;  Hoen  v.  Simmons,  i  Cal.,  119; 
Slaughter  v.  Harris,  i  Ind.,  138  ;  Satterfield  v.  Keller,  14  La.  An.,  606  ;  Watts 
V.  Waddle,  6  Pet.,  384  ;  M'Kinney  v.  Watts,  3  A.  K.  Marsh,  268 ;  Wilson  v. 
Brumfield,  8  Blackf.,  146 ;  Bryan  v.  Read,  i  Dev.  &  Batt.  Eq.,  78  ;  Reed  v.  Noe, 
9  Yerg.,  283  ;  West  v.  Case,  3  Ind.,  301  ;  Scott  v.  Shepherd,  3  Gilman,  83  ;  King 
V.  Knapp,  59  N.  Y.,  462;  Hoover  v.  Calhoun,  16  Gratt.,  109;  Jackson  v.  Ligon, 
3  Leigh,  174;  Jordon  v.  Deaton,  23  Ark.,  704;  Stevenson  v.  Dunlap,  7  T.  B. 
Klonr.,  134;  Jones  v.  Roberts,  6  Call,  187;  Harvie  v.  Banks,  i  -Rand,  408; 
Frankfort,  etc..  Turnpike  Co.  v.  Churchill,  6  Monr.,  427  ;  Hepburn  v.  Auld,  5 
Cranch,  262;  Kitchen  v.  Coffyn,  4  Ind.,  504;  Board  of  Supervisors  v.  Henne- 
berry,  41  111.,  179;  Cox  v.  Boyd,  38  lb  ,  42  ;  Huldeman  v.  Chambers,  19  Te.xas, 
I  ;  Furbish  v.  White,  25  Me.,  219;  Stone  v.  Buckner,  12  Sm.  &  Marsh,  73  ;  Jones 
V.  Alley,  4  Greene,  Iowa,  181  ;  Snodgrass  v.  Wolf,  ii  W.  Va.,  158;  O'Brien  v. 
Pentz,  48  Md.,  562 ;  Marburg  v.  Cole,  49  lb.,  402.  He  who  asks  equitable  relief 
must  first  do  equity.  Secrest  v.  McKenna,  i  Strobh.  Eq.,  356;  Richardson  v. 
Linney,  7  B.  Mon.,  571.  "There  are  few  cases  in  which  a  court  of  equity  will 
insist  on  the  maxim  that  he  who  seeks  equity  must  do  equity,  with  more  rigor, 
than  in  those  for  specific  performance."  Eastman  v.  Plumer,  46  N.  H.,  464,  per 
Sargent,  J.  The  party  who  does  not  show  himself  prompt  and  eager  to  perform 
all  that  a  contract  requires  of  him,  will  not  have  a  decree  for  specific  performance 
in  his  favor.  Brown  v.  Haines,  12  Ohio,  i.  When  two  acts  are  to  be  done  at  the 
same  time,  neither  party  can  maintain  a  suit  against  the  other,  without  alleging 
performance  or  an  offer  to  perform  on  his  part.  Braswell  v.  Pope,  80  N.  C,  57.  • 
The  rule  that  the  instrument  on  which  a  party  seeks  relief  in  equity  will  not  be 
specifically  enforced  unless  it  be  supported  by  a  meritorious  consideration,  neces- 


§  425'     PERFORMANCE  OR  OFFER  TO  PERFORM.       577 

judgment  against  the  maker,  agreed  to  assign  such  judg- 
ment to  the  indorser,  if  he  would  confess  a  judgment  for 
the  sum  for  which  he  was  Hable.  The  holder  of  the  note 
having  refused  to  make  the  assignment,  in  a  suit  to  compel 
him  to  do  so,  it  was  held  that,  as  there  was  no  allegation  by 
the  indorser  that  he  had  paid  the  judgment  so  confessed, 
he  was  not  entitled  to  the  relief  sought,  payment  of  the 
money,  and  not  the  form  of  confession,  being  the  essence 
of  the  contract/  Where  a  vendee  of  land  gave  to  the  ven- 
dor an  order  on  a  third  person,  and  filed  a  bill  for  specific 
performance  without  payment  of  the  order,  it  was  held  that 
he  was  not  entitled  to  a  decree,  there  being  no  proof  that 
the  vendor  received  the  order  in  satisfaction.'  A  entered  in- 
to a  contract  with   B.,  for  the  purchase  of  land,  and  gave 


sarily  implies  that  specific  performance  of  an  agreement  will  not  be  enforced  in 
equity,  where  the  party  seeking  such  relief  has  not  performed  the  agreement  on 
his  part.  Burling  v.  King,  66  Barb.,  633.  Where  a  railroad  company  agreed 
with  the  owner  of  land  to  leave  it  to  arbitrators  to  determine  what  sum  the  com- 
pany should  pay  for  the  right  of  way  over  his  land,  it  was  held  that  they  were 
not  entitled  to  the  enjoyment  of  the  easement  until  they  had  paid  or  tendered  to 
him  the  sum  awarded.  Stewart  v.  Raymond  R.R.  Co.,  supra.  When  a  pur- 
chaser seeks  specific  performance,  he  must  show  that  the  contract  was  actually 
made  ;  if  negotiated  between  agents,  that  they  were  duly  authorized  ;  that  there 
has  been  no  unreasonable  delay  in  performing  or  offering  to  perform ;  and  that 
the  contract  is  fair  and  reasonable.  Taylor  v.  Merrill,  55  111.,  52;  S.  P.,  Fitch 
V.  Boyd,  lb.,  307.  If  a  party  applies  for  an  injunction,  or  a  ne  exeat,  or  for  a  re- 
ceiver to  dispossess  the  defendant  of  the  possession  or  control  of  his  property,  it 
is  not  sufficient  to  show  that  he  may  hereafter  be  in  a  situation  to  ask  for  a  spe- 
cific performance  of  the  contract ;  but  he  must  show  a  present  right.  In  a  case 
referred  to  by  the  reporter  in  2  Dick  ,  497,  Lord  Thurlow  is  said  to  have  denied 
an  application  for  a  ne  exeat  against  a  purchaser  who  was  going  abroad,  because 
it  did  not  appear  by  the  bill  that  the  complainant  was  then  in  a  situation  to  make 
a  good  title  to  the  land  purchased  by  the  defendant.  And  in  Morris  v.  McNeil, 
2  Russ.,  604,  Lord  Eldon  discharged  a  ne  exeat  upon  that  ground  alone,  saying 
that  "  unless  the  court  can  make  it  out  to  be  quite  clear  that  there  must  be  a 
specific  performance,  it  cannot  grant  the  writ."  In  another  case,  plaintiff  and 
defendant  agreed  to  exchange  farms  ;  but  the  plaintiff  w^as  unable  to  complete 
the  contract  at  the  time  fixed  in  consequence  of  an  incumbrance  upon  his  land  ; 
and  it  was  held  that  a  receiver  of  the  rents  of  the  defendant's  land,  could  not  be 
appointed  before  the  removal  of  the  incumbrance.  Baldwin  v.  Salter,  8  Paige 
Ch.,  473. 

'  Caller  v.  Vivian,  8  Ala.,  903. 

"^  Wheeler  v.  McClain,  3  Dana,  81.  The  relation  of  vendor  and  vendee  in  an 
executory  contract  for  the  sale  and  purchase  of  land,  is  substantially  that  of  mort- 
gagee and  mortgagor,  and  governed  by  the  same  general  rules.  In  both  cases, 
the  legal  title  to  the  land  is  held  as  a  security  for  the  debt,  to  be  conveyed  to 
the  owner  of  the  equitable  title  when  the  debt  is  paid.  Ellis  v.  Hussey,  66  N. 
C,  501  ;  Jones  v.  Boyd,  80  lb.,  258. 

Z1 


578  NON-PERFORMANCE    OF    PLAINTIFF.  §  425. 

his  note  for  the  purchase  money.  B.  having  pledged  the 
note  as  security,  A.  purchased  it  from  the  pledgee  at  a  dis- 
count. A  decree  for  specific  performance  was  refused, 
until  the  whole  amount  of  the  note  was  paid.'  In  another 
case,  a  vendor,  who  owned  three  notes  for  one  hundred  and 
twenty  dollars  each,  which  were  given  for  the  purchase  of 
certain  land,  agreed  to  make  title  to  the  land  to  the  vendee, 
if  he  would  pay  the  notes.  A  third  person,  in  whose  hands 
the  notes  had  been  placed  by  the  vendor  as  collateral  security, 
delivered  them  as  fully  satisfied  to  the  vendee  in  considera- 
tion of  other  securities  to  the  amount  of  one  hundred  and 
fifty  dollars.  It  was  held  not  such  a  fulfilment  on  the  part 
of  the  vendee  as  entitled  him  to  specific  performance." 
Where  the  owner  of  a  mine  contracted  to  lease  it  for  twelve 
months,  in  order  that  search  might  be  made  for  minerals,  it 
being  agreed  that  the  lessor  should  make  a  good  title  to  one- 
half  of  the  minerals  discovered,  and  the  lessees  permitted 
other  persons  to  make  explorations  and  discoveries  which 
added  greatly  to  the  value  of  the  property,  without  offering 
to  assist,  it  not  appearing  that  the  lessees  were  ready  or  able 
to  do  the  necessary  work  in  developing  the  mine,  it  was  held 
that  they  were  not  entitled  to  a  specific  performance." 

'  Taft  V.  Leavitt,  Wright,  589. 

"  Daniel  v.  Hill,  23  Texas,  571.  See  Passmore  v.  Moore,  i  J.  J.  Marsh,  591  ; 
Doar  V.  Gibbs,  i  Bailey  Eq.,  371  ;  Van  Scoten  v.  Albright,  5  N.  J.  Eq.,  i  Halst., 
467 ;  Denniston  v.  Coquillard,  5  McLean,  233.  Where  a  vendor  of  land,  and  the 
administrators  of  the  vendee,  rescinded  a  contract  made  between  the  former  and 
the  intestate,  after  one  of  several  notes  given  for  the  purchase  money  had  been 
paid,  and  the  unpaid  notes  were  delivered  to  the  administrators,  it  was  held  that 
the  heirs  of  the  intestate  could  not  compel  the  vendor  to  perfect  the  title,  unless 
they  would  pay  the  residue  of  the  purchase  money,  the  vendor  promising  that, 
upon  such  payment,  he  would  fulfil  the  contract  made  by  him  with  their  ances- 
tor.    Strange  v.  Watson,  11  Ala.,  324. 

^  Cabe  v.  Dixon,  4  Jones  Eq.,  436.  In  a  suit  for  specific  performance  it  ap- 
peared that  A.  conveyed  certain  land  to  the  defendant,  who  on  the  same  day  gave 
a  bond  to  A.  and  B.,  who  were  partners,  conditioned  to  reconvey  the  land  to 
them  upon  their  repayment  of  such  advances  as  the  defendant  might  thereafter 
make,  and  upon  their  cancelling  all  indebtedness  to  him,  and  all  taxes  on  the 
land,  which  they  were  to  occupy  and  improve  for  a  specified  period  free  of  rent, 
provided  they  paid  interest  and  taxes.  The  defendant  advanced  a  considerable 
sum  which  was  never  repaid.  Subsequently  the  defendant,  at  the  request  of  one 
of  the  partners,  bound  himself  by  a  written  guaranty  to  pay  a  note  of  the  firm, 
with  the  understanding  that  the  defendant  was  to  rely  upon  the  land  as  security. 
A  few  months  afterward  the  defendant  took  possession  of  the  land  for  breach  of 


§  426.       FULFILMENT  OF  ACTS  PROMISED,  TO  BE  SHOWN.      579 

§  426.  Fuljihient  of  acts  promised,  to  be  shown. — It  is 
incumbent  on  the  plaintiff  to  show  not  only  that  he  has  per- 
formed, or  is  ready  to  perform,  the  terms  of  the  contract 
itself,  but  also  subsequent  acts  promised  at  the  time  of  the 
agreement  on  the  faith  of  which  the  contract  was  entered 
into,  and  which  therefore  constituted  a  part  of  the  induce- 
ment. If  it  were  otherwise,  great  injustice  would  often  be 
done,  as  such  promises  frequently  have  a  controlling  influ- 
ence in  the  transaction,  without  which  the  bargain  would 
probably  have  fallen  through.  An  owner  of  real  estate,  in 
contracting  for  its  sale,  represented  that  he  would  improve 
the  access  to  the  property,  but  not  having  done  it,  the  court 
refused  to  decree  specific  performance  against  the  vendee. 
And  where  the  vendor,  through  his  agent,  told  the  purchaser 
that  a  church  should  be  built  in  the  immediate  vicinity  of 
the  land  sold,  and  that  he  would  complete  certain  streets, 
neither  of  which  was  done,  the  court  declined  to  compel  the 
vendee  to  take  the  property.''  The  effect  of  the  exhibition, 
at  the  time  of  the  contract,  of  a  map  or  plan  of  the  premises, 
on  the  rights  and  obligations  of  the  respective  parties,  will 
of  course  depend  upon  the  mode  and  object  of  the  exhi- 
bition, and  upon  what  then  transpired.  If  no  allusion  is 
made  in  the  contract  to  any  such  map  or  plan,  the  court  will 
not  infer  a  binding  promise,  from  the  mere  fact  that  a  map 
or  plan  of  the  property  was  shown  to  the  purchaser.'  On 
the  same  principle,  a  plan  deposited,  cannot  be  used  in  con- 
struing a  special  act  of  the  Legislature,  except  so  far  as  it 


the  condition  of  the  bond.  In  a  short  time  thereafter  A.  and  B.  were  declared 
bankrupt,  and  an  assignee  appointed,  who  sold  and  conveyed  all  the  rights  of 
the  bankrupts  in  the  land  to  the  plaintiff,  who  knew  that  the  defendant  claimed 
the  sum  paid  by  him  on  the  note.  It  was  held  that  the  plaintiff  could  only  have 
a  decree  by  paying  whatever  A.  and  B.  had  agreed  to  pay  before  obtaining  a  re- 
conveyance, which  sum  was  in  equity  a  charge  upon  the  land  in  the  hands  of  the 
defendant,  and  became  a  part  of  the  debt  which  the  plaintiff  must  pay,  and  that 
as  he  declined  to  do  this,  the  decree  of  the  court  below  dismissing  the  bill  must 
be  affirmed.     Love  v.  Sortwell,  124  Mass.,  446. 

'  Beaumont  v.  Dukes,  Jac,  422,  "^  Myers  v.  Watson,  i  Sim.  N.  S.,  523. 

^  Feoffees  of  Heriot's  Hospital  v.  Gibson,  2  Dow.,  301  ;  Squire  v.  Campbell,  i 
My.  &  Cr.,  459. 


580  NON-PERFORMANCE    OF    PLAINTIFF.  §  426. 

may  be  referred  to  in  the  act  itself,'  When  a  map,  exhibited 
at  the  time  of  the  contract,  shows  the  proposed  division  of 
the  property,  the  vendor  cannot  afterward  divide  the  land  in 
a  way  so  different,  as  to  attract  a  wholly  different  class  of 
residents  from  that  which  would  have  located  there,  if  the 
plan  laid  down  on  the  map  had  been  carried  out."  But  the 
map  exhibited  need  not  be  strictly  followed.  Where  the 
contract  referred  to  a  plan  as  a  description  of  the  property, 
and  the  plan  represented  the  measurement  and  width  of  a 
street,  but  the  agreement  did  not  expressly  refer  to  that  part 
of  the  plan  as  binding,  it  was  held  that  the  party  w^as  not 
entitled  to  relief  against  an  encroachment  on  the  width  of 
the  street'  So,  where  the  particulars  referred  in  general 
terms  to  an  accompanying  plan  on  which  several  roads  were 
laid  dowm  so  as  to  give  frontages  to  all  of  the  lots,  and  cor- 
responding roads  were  marked  out  on  the  land  itself,  it  was 
held  that  as  the  particulars  and  conditions  of  sale  did  not 
provide  for  any  right  of  way  beyond  a  road  leading  into  the 
nearest  highway,  the  purchaser  was  only  entitled  to  such  a 
road.'  When  the  plan  exhibited,  instead  of  showing  a  pro- 
posed future  condition  of  the  property,  correctly  indicates 
its  then  existing  condition,  it  has  been  held  that,  in  the  ab- 
sence of  anything  said  or  done  by  the  vendor  to  mJslead  the 
purchaser,  he  will  not  be  bound  to  make  good  the  loss  there- 
by resulting  to  the  latter.  Thus,  where  a  plan  represented 
a  well  on  lot  4,  communicating  with  a  reservoir  or  lot  2, 
and  that  communicating  with  an  inn  on  lot  i  which  the 
plaintiff  purchased,  and  the  vendor  conveyed  lots  2  and  4 
to  a  third  person  without  reserving  to  the  plaintiff  a  right 
to  a  flow  of  water  from  the  well,  the  plaintiff's  demand  for 
compensation  for  the  loss  of  the  water  was  denied."  But 
the  foregoing  decision,  if  sound,  and  it  has  been  questioned 

'  North  British  R.R.  Co.  v.  Tod,  12  CI.  &  Fin.,  722;  Beardmer  v.  London  & 
Northwestern  R.R.  Co.,  i  M'N.  &  G.,  112. 
-  Peacock  v.  Penson,  11  Beav.,  355,  361. 
'  Nurse  v.  Lord  Seymour,  13  Beav.,  254. 
*  Randall  V.  Hall,  4  De  G.  &  Sm.,  343.     "  Fewster  v.  Turner,  11  L.  J.  Ch.,  161. 


§  427-  LITERAL    PERFORMANCE    NOT    REQUIRED.  581 

by  high  authority,'  went  to  the  verge  of  the  rule  ;  as  the 
vendor  seems  to  have  taken  advantage  of  what  must  have 
been  inadvertence  on  the  part  of  the  plaintiff". 

§  427.  Literal  performance  not  required. — Although, 
when  it  is  out  of  the  power  of  the  plaintiff  to  fulfil  his  part 
of  the  contract,  he  is  not  entitled  to  performance  by  the 
other  party,  on  account  of  the  failure  of  the  consideration 
which  was  to  have  moved  from  him,  yet  when  the  plaintiff's 
incapacity  has  reference,  not  to  the  substantial,  but  only  to 
the  literal  fulfilment  of  the  contract,  the  court,  looking  be- 
yond mere  matters  of  form,  will  endeavor  to  do  complete 
justice  between  the  parties. "^  A.  and  B.,  entered  into  an 
agreement  to  exchange  farms,  and  to  execute  to  each  other 
"good  and  valid  conveyances,  in  the  law,  of  the  same,"  with 
covenants  of  seisin  and  warranty.  The  farm  agreed  to  be 
conveyed  by  A.  was  parcel  of  a  large  tract  of  land  granted 
by  the  proprietor  of  a  manor,  and  was  subject  to  a  quit  rent 
of  fifty-four  cents  a  year,  which  was  well  known  to  B.  at  the 
time  he  made  the  contract ;  and  it  was  also  a  matter  of  pub- 
lic notoriety  that  all  the  lands  in  the  manor  were  subject  to 
such  a  quit  rent.  It  was  held  that  the  existence  of  this  rent 
was  not  an  objection  to  a  decree  for  specific  performance." 
But  the  complainant  must  show  that  he  has  not  been  in  de- 
fault, and  that  he  has  taken  all  proper  steps  toward  fulfill- 
ing on  his  part ;  and  if  the  non-compHance  does  not  go  to 
the  essence  of  the  contract,  relief  will  be  granted.*     The 

'  Lord  St.  Leonards,  Vend.,  20. 

^  Davis  V.  Hone,  2  Sch.  &  Lef.,  347  ;  Counter  v.  MacPherson,  5  Moo.  P.  C.  C, 
83,  108 ;  Orman  v.  Merrill,  27  Iowa,  476.  A.  agreed  in  writing  to  make  cer- 
tain advances  to  B.  for  building  and  furnishing  a  house  on  A.'s  land,  and,  seventy 
days  after  its  completion,  to  convey  the  house  and  other  land  to  B.,  B.  to  supply 
all  labor  and  materials,  and  build  the  house,  and,  upon  delivery  of  the  deed,  to 
return  to  A.  his  advances  with  interest,  and  pay  a  certain  price  for  the  land  either 
in  cash,  or  by  note  payable  in  five  years,  secured  by  mortgage.  It  was  held  that 
although  B.  could  not,  four  years  after  the  contract,  and  two  and  a  half  years 
after  A.'s  death,  elect  to  pay  by  note  secured  by  mortgage,  yet  that,  upon  pay- 
ment of  the  money,  he  was  entitled  to  specific  performance.  Phillips  v.  Soule, 
9  Gray,  233. 

"  Ten  Broeck  v.  Livingston,  i  Johns  Ch.,  357.     Ante,  §§  415,  422. 

^  McCorkle  v.  Brown,  9  Sm.  &  Marsh,  167.  See  Story's  Eq.  Juris.,  Sees. 
77i>  775- 


582  NON-PERFORMANCE    OF    PLAINTIFF.  §  427. 

principle  is  well  settled,  that  where  either  party  has  per- 
formed a  valuable  part  of  his  contract  for  the  sale  and  pur- 
chase of  real  estate,  and  is  in  no  default  for  not  performing  the 
residue,  he  is  entitled  to  performance  by  the  other  party  to 
the  contract'  With  reference  to  the  vendor,  if  he  is  unable, 
from,  any  cause,  not  involving  bad  faith  on  his  part,  to  con- 
vey all  the  land  contracted  to  be  sold,  but  it  appears  that 
the  part  he  cannot  convey,  is  of  small  importance,  or  imma- 
terial to  the  purchaser's  enjoyment  of  that  which  can  be 
conveyed  to  him,  the  vendor  may  insist  on  a  performance 
with  compensation  to  the  purchaser,  or  an  abatement  from 
the  agreed  price.  But  this  cannot  be  done  when  the  defect 
extends  to  a  considerable  portion  of  the  entire  subject  mat- 
ter, or  is  material  to  the  enjoyment  of  the  part  concerning 
which  there  is  no  defect.'  So,  a  slight  default  on  the  part 
of  the  vendee,  in  the  performance  of  work  to  be  done  by 
him  before  the  deed  is  to  be  delivered,  will  not  prevent  a 
decree  for  specific  performance  in  his  favor,  when  the  dif- 
ference can  be  compensated  in  money/  Where  in  an  agree- 
ment by  A.  for  the  sale  of  property  to  B.,  it  was  stipulated 
that  A.  should  continue  tenant  of  the  land  from  year  to 
year,  which,  owing  to  his  embarrassed  circumstances,  he 
could  not  do,  it  was  held  that  this,  from  the  determinable 
nature  of  the  holding,  was  an  inconsiderable  matter,  and 
therefore  not  a  bar  to  a  specific  performance  of  the  contract.* 
An  omission,  by  mutual  consent,  to  perform  some  particu- 
lar stipulation  for  such  a  length  of  time  that  neither  would 
have  a  right  to  call  upon  the  other  to  perform  it,  and  the 
non-performance  of  that  particular  stipulation,  if  it  docs  not 
appear  to  have  affected  the  essential  rights  or  interests  of 

'  Hays  V.  Hall,  4  Porter,  374 ;  Wynn  v.  Garland,  19  Ark.,  23. 

'  Foley  V.  Crow,  37  Md.,  51. 

=>  Hulmes  v.  Thorpe,  5  N.  J.  Eq.  (i  Halst.),  415. 

*  Lord  V.  Stephens,  i  Y.  &  C.  Ex.,  222.  Courts  of  equity  should  exercise  great 
caution  in  enforcing  a  partial  performance  of  a  contract  of  sale  of  real  estate. 
Mills  V.  Van  Voorhies,  20  N.  Y.,  412.  If  it  is  in  the  power  of  the  grantor  to  ful- 
fil his  agreement,  he  will  be  compelled  to  do  so,  though  there  may  be  a  conflict 
between  the  rights  agreed  to  be  granted,  and  other  rights  secured  by  a  prior 
grant.     Conant  v.  Canal  Co.,  29  Vt.,  263. 


§  428-  DEFAULT    AS    TO    SEPARATE    AGREEMENT.  583 

the  parties  to  the  contract  in  other  respects,  will  not  defeat 
the  right  of  the  party  whose  performance  of  the  contract 
has  otherwise  been  complete,  to  a  decree/ 

§  428.  Default  as  to  separate  agreetne^tt. — If  a  contract 
embraces  the  doing  of  several  pieces  of  work  mutually 
agreed  to,  the  not  doing  of  one  of  them  will  not  affect  the 
right  of  a  party  not  in  default  to  require  performance  of 
the  remainder,  when  the  rights  and  interests  of  the  con- 
tracting parties  as  to  what  may  actually  be  done  will  not 
thereby  be  impaired/  Where,  besides  the  contract  sought 
to  be  enforced,  there  is  another  separate  though  collateral 
contract,  entered  into  at  the  same  time,  between  the  parties 
concerning  the  same  subject  matter,  default  of  a  party  as 
to  the  latter  will  not  bar  a  suit  brought  by  him  for  the  spe- 
cific performance  of  the  former/  A.  entered  into  a  con- 
tract with  B.,  who  owned  a  plot  of  land,  to  erect  a  house 
on  it,  and  to  keep  it  insured  in  the  joint  names  of  A.  and 
B.  in  a  certain  office,  B.,  when  the  house  was  completed,  to 
grant  a  lease  of  the  plot  to  A,,  the  agreement  for  the  lease 
to  be  void  if  A.  should  not  fulfil  his  part.  It  was  further 
stipulated  that  A.  should  have  the  right  to  purchase  the  fee 
within  two  years.  A.  built  the  house,  but  insured  in  the 
wrong  office,  and  in  his  name  alone.  A  bill  having  been 
filed  by  A.  under  the  option  to  purchase,  specific  perform- 
ance was  decreed,  such  option  being  held  independent  of 
the  right  to  a  lease,  in  respect  to  which  the  plaintiff  had 
made  default."  In  another  case,  A.  agreed  to  let  to  B.  sev- 
eral plots  of  land  for  ninety-nine  years  at  a  specified  rent,  to 
be  apportioned  as  thereafter  stated.  B.  agreed  to  build  on 
plot  C  twenty  houses,  on  plot  D  eight,  on  plot  E  ten,  and 


1  Portland,  etc.,  R.R.  Co.  v.  Grand  Trunk  R.R.  Co.,  63  Me.,  90.  ^  Ibid. 

3  Phipps  V.  Child,  3  Drew,  709  ;  Stewart  v.  Metcalf,  68  III,  109.  A  vendor 
cannot  object  to  convey  to  a  purchaser  in  parcels  by  separate  conveyances  at 
one  and  the  same  time  if  the  purchaser  requires  him  to  da  so,  and  pays  him  the 
additional  expense  he  thereby  incurs.  But  it  is  doubtful  whether,  in  the  ab- 
sence of  a  stipulation  to  that  effect,  the  vendor  may  not  object  so  to  convey  at 
different  times.     Earl  of  Egmont  v.  Smith,  L.  R.  6,  Ch.  D.  469. 

*  Green  v.  Low,  22  Beav.,  625. 


584  NON-rERFORMANCE    OF    PLAINTIFF.  §  428. 

on  plot  F  five  ;  and  it  was  stipulated  that  a  separate  lease 
of  plot  D  at  a  rent  named  should  be  granted  as  soon  as 
four  of  the  houses  on  that  plot,  and  two  of  the  ten  houses 
on  plot  E,  were  inclosed,  and  that  a  separate  lease  of  plot 
E  should  be  granted  as  soon  as  five  of  the  ten  houses  on 
that  plot  were  inclosed.  B.  mortgaged  this  contract  to  the 
plaintiff,  and  afterward  became  insolvent.  The  plaintiff  in- 
closed the  requisite  number  of  houses  on  plots  D  and  E, 
and  applied  for  leases  of  them,  at  the  same  time  denying 
his  liability  to  perform  other  parts  of  the  agreement.  It 
was  held  on  appeal,  reversing  the  decision  of  the  vice- 
chancellor,  that  the  plaintiff  was  entitled  to  leases  of  the 
two  plots  without  assuming  obligations  under  the  entire 
contract.'  So,  in  a  deed  for  the  dissolution  of  a  partner- 
ship between  A.  and  B,,  A.  assigned  to  B.  certain  foreign 
shares,  and  covenanted  for  further  assurance  ;  and  B.  cove- 
nanted with  A.  for  indemnity  against  certain  liabilities.  A 
further  assurance  of  the  shares  having  become  necessary, 
on  a  bill  filed  by  B.  to  enforce  specific  performance,  it  was 
held  that  a  breach  by  B.  of  the  covenant  to  indemnify  was 
no  defence,  the  two  covenants  being  independent,  and  the 
non-performance  of  one  not  being  a  ground  for  resisting 
the  performance  of  the  other.''  Although  a  court  of  equity 
will  sometimes  refuse  to  decree  specific  performance  of  the 
principal  contract  in  violation  of  a  collateral  covenant  re- 
straining an  assignment,  yet  it  will  not  do  so  when  it  ap- 
pears, on  the  face  of  the  contract,  that  the  prohibition  to 
assign  was  not  the  main  purpose  of  the  covenant,  but  in 
the  nature  of  a  mere  security  for  the  performance  of  the 
principal  covenants.'  But  when  the  party  applying  for 
specific  performance  has  made  default  in  a  collateral  agree- 
ment or  representation  upon  the  faith  of  which  the  con- 
tract was  entered  into,  the  bill  will  in  general  be  dismissed, 

'  Wilkinson  v.  Clements,  L.  R.  8,  Ch.  96. 

5  Gibson  v.  Goldsmid,  5  De  G.  M.  &  G.,  757  ;  S.  C.,  18  Beav.,  584. 

*  Grigg  V.  Landis,  21  N.  J.  Eq.,  494;  S.  C,  19  lb.,  350. 


§§  4-9>  430-  INABILITY    TO    FULFIL    STRICTLY.  585 

on  the  ground  that  a  plaintiff  seeking  equity  must  do 
equity.  If  a  contract  in  writing  be  executed  upon  the 
faith  of  a  parol  agreement  adding  to  or  varying  the  terms, 
the  court  may  refuse  to  enforce  the  written  contract  unless 
the  plaintiff  will  carry  out  the  parol  agreement.'  Where  a 
written  contract  was  entered  into  for  a  lease,  and  it  was 
separately  agreed,  by  parol,  that  the  lessee  should  pay  a 
premium,  it  was  held  that  he  could  not  have  specific  per- 
formance unless  he  consented  to  pay  the  premium.'' 

§  429.  Matters  of  foi'-ni  not  regarded.  —  Specific  per- 
formance of  an  agreement  will  not  be  denied  because  of 
the  failure  of  the  complainant  to  do  a  merely  formal  act, 
when  the  facts  in  the  case  otherwise  sustain  the  bill.'  An 
agreement  was  entered  into  for  the  conveyance  of  prop- 
erty, payment  to  be  made  by  a  deposit  of  the  price  in  one 
of  two  banks  in  B.,  and  a  certificate  to  be  delivered  to  the 
vendor.  The  deposit  was  made  in  a  different  bank  in  B., 
and  a  certificate  of  deposit  offered  to  the  vendor  within  a 
reasonable  time,  which  was  refused.  Then  a  tender  of  the 
purchase  money  and  interest  was  made,  which  was  also  re- 
fused. On  filing  a  bill  and  paying  the  money  into  court, 
it  was  held  a  sufficient  performance  of  the  contract." 

§  430.  Inability  to  fulfil  strictly. — Where  the  plaintiff 
has  performed  a  substantial  part  of  his  contract,  and  the 
remainder  has  become  impossible  without  his  fault,  the 
contract  will  not  be  enforced  against  the  other  party,  unless 
the  plaintiff  is  not  in  statu  qtto  as  to  the  part  of  the  con- 
tract which  he  has  performed.  If  he  has  done  so  much  of 
his  part  that  he  cannot  be  restored  to  his  former  situation, 
and  is  in  no  default  for  not  performing  the  residue,  he  may 
insist  that  the  contract  be  carried  out.  For,  as  he  entered 
upon  performance  in  expectation  of  the  equivalent  he  was 
to  receive  from  the  person  with  whom  he  contracted,  there 

'  Clarke  v.  Grant,  14  Ves.,  519  ;  London  &  Birmingham  R.R.  v.  Winter,  Cr. 
&  Ph.,  57. 

^  Martin  v.  Pycroft,  2  De  G.  M.  &  G.,  785. 

^  Coale  V.  Barney,  i  Gill  &  Johns,  324.  *  Secombe  v.  Steele,  20  How.,  94. 


586  NON-PERFORMANCE    OF    PLAINTIFF.  §  43 1. 

is  no  reason  why  the  consequences  of  his  accidental  failure 
should  fall  upon  him  more  than  upon  the  other.'  Where 
one  agrees  to  locate  land,  and  then  convey  his  interest,  and 
dies  before  the  patent  is  issued,  but  not  until  he  has  so  far 
performed  his  agreement,  by  selecting  the  land  and  procur- 
ing its  location,  that  any  other  person  could  have  advanced 
the  money  and  obtained  the  patent,  his  heirs  will  be  entitled 
to  a  decree  for  specific  performance.'' 

§  431.  Plaintiff  rcqinred  to  discharge  sepai'ate  liability. 
— On  the  principle  that  he  who  seeks  equity  must  do 
equity,  specific  performance  will  sometimes  be  refused,  not- 
withstanding the  terms  of  the  contract  have    been    fully 

'2  Story's  Eq.  Juris.,  Sec.  772  ;  Breckenridge  v.  Clinkinbeard,  2  Litt.,  127  ;  and 
see  I  Fonbl.  Eq.,  Book  i,  Ch.  6,  Sec.  3;  post,  %%  502,  504.  On  this  subject, 
Chief  Baron  Gilbert,  in  his  lex  prcetoria,  pp.  240,  241,  says  :  "  It  is  to  be  noted 
that  the  plaintiff  who  exhibited  his  bill  upon  the  foot  of  performing  the  bargain 
on  his  part,  ought  to  show  that  he  has  performed  all  that  is  to  be  done  on  his 
part,  or  is  ready  to  do  it ;  for  where  any  part  which  he  should  have  performed 
is  become  impossible  to  be  performed,  at  the  time  of  exhibiting  his  bill,  then  he 
can  have  no  specific  execution,  because  he  cannot  specifically  execute  on  his 
own  part.  As  in  the  case  of  my  Lord  Feversham,  which  was  on  a  marriage 
agreement  whereby  he  agreed  to  settle  the  manor  of  Holmly  on  his  wife  and 
the  heirs  of  their  bodies,  and  clear  it  of  incumbrances,  and  settle  a  separate 
maintenance  on  his  wife,  and  likewise  sell  some  pensions  in  order  to  make  a 
further  provision  for  his  wife,  and  the  issue  of  that  marriage  ;  and  Sir  George 
Sandys,  the  father-in-law,  agreed  to  settle  three  thousand  pounds  per  annum  on 
the  Lord  P'eversham  for  life,  remainder  to  the  wife  for  life,  and  so  to  the  issue 
of  the  marriage.  Lord  Feversham  cleared  the  manor  of  Holmly,  settled  it  ac- 
cordinglv,  and  settled  the  separate  maintenance,  but  did  not  sell  the  pensions, 
nor  settle  the  further  provisions.  The  wife  died  without  issue,  and  the  Lord 
Feversham  preferred  his  bill  to  have  the  three  thousand  pounds  per  annum  set- 
tled on  him  during  his  life.  But  it  was  decreed,  because  Lord  Feversham  was 
in  statu  quo  zs  to  all  that  part  of  the  agreement  which  he  had  performed,  and 
not  having  performed  the  whole,  and  the  other  parts  being  now  impossible,  and 
no  compensation  being  possible  to  be  adjusted  for  it,  he  had  not  title  in  equity 
to  have  performance  of  Sir  George's  part  of  the  agreement,  since  such  perform- 
ance could  not  be  mutual.  But  the  issue  of  Lord  Feversham  might  have  been 
relieved,  because  in  no  default."  Earl  of  Feversham  v.  Watson,  Rep.  Temp. 
Finch,  445  ;  2  Freem.,  35.  But  if  a  man  has  performed  so  much  of  his  part  of 
the  agreement,  as  that  he  is  not  in  statu  quo,  and  is  in  no  default  for  not  per- 
forming the  residue,  then  he  shall  have  a  specific  execution  from  the  other  party, 
of  the  agreement.  As  "  if  a  man  has  contracted  for  a  portion  with  his  wife, 
and  has  agreed  to  settle  on  the  wife  and  her  issue  lands  of  such  a  value  free 
from  incumbrance,  and  he  sells  part  of  his  land  to  dislncumber,  and  is  going  on 
to  disincumber  and  settle  the  rest,  then,  if  the  wife  dies  without  issue,  because 
he  cannot  be  in  statu  quo,  having  sold  part  of  his  lands,  and  there  is  no  default 
in  him,  since  he  was  going  on  to  disincumber  and  settle  the  rest,  therefore,  the 
accident  of  the  death  of  his  wife  doth  not  alter  his  right  to  his  wife's  portion." 
Ibid.,  referring  to  Meredith  v.  Wynn,  Eq.  Abr.,  15;  Gilb.  Eq.  R.,  70;  Prec. 
Ch.,  312  ;  2  Vern.,  448. 

'Bell  V.  Warren,  39  Texas,  106. 


§  431-  SEPARATE    LIABILITY.  587 

carried  out  on  the  part  of  the  plaintiff,  until  he  discharges 
other  obligations  he  is  under  toward  the  defendant/  Where 
the  vendor  gave  his  bond  conditioned  to  convey  certain 
land  to  another,  and  the  purchase  money  was  paid  pursuant 
to  the  contract  between  them,  but  the  vendor  had  mean- 
while incurred  liability  for  the  vendee  as  surety,  a  decree 
for  specific  performance  in  behalf  of  the  purchaser  was  re- 
fused, and  the  bill  retained  to  allow  the  vendor  to  avail 
himself  of  his  legal  title  to  indemnify  or  reimburse  himself 
for  whatever  he  might  be  compelled  to  pay  as  surety.'  In 
another  case,  there  being  a  contract  of  sale  on  the  payment 
of  a  specified  sum  on  a  certain  day,  and  the  money  tender- 
ed at  that  time,  and  a  refusal  to  convey  unless  the  purchaser 
would  also  pay  certain  other  sums  which  he  owed,  the  court 
pursued  the  same  course,  and  directed  an  account  to  ascer- 
tain what  was  the  whole  amount  due,  in  order  that  provi- 
sion might  be  made  for  its  payment  out  of  the  sale  of  the 
land,  if  that  should  become  necessary.'  A.  gave  B.  an 
agreement  in  writing  to  convey  to  B.  certain  land  provided 
B.  should  pay  him  six  hundred  dollars  in  three  years,  with 
semi-annual  interest  thereon,  which  sum  A.  had  advanced 
for  B.  in  the  purchase  of  the  land,  and  taken  a  deed  of  it  as 
security.  Ten  days  subsequently,  A.  and  B.  further  agreed  in 
writing  that  A.  should  hold  the  land  not  only  as  security  for 
the  six  hundred  dollars  and  interest,  but  for  such  other 
sums  as  A.  might  thereafter  let  B.  have  "  for  his  note,  or 
become  holden  for  by  indorsement,  or  otherwise  for  him  " ; 
and  B.  agreed  to  pay  such  indebtedness  before  the  delivery 
of  a  deed,  the  same  as  if  those  additional  sums  had  been 
incorporated  in  the  original  agreement.  Afterward,  further 
advances  were  made  by  A.  to  B.,  for  which  he  took  B.'s 

'  So  when,  from  the  change  of  circumstances,  it  would  be  unconscientious  to 
enforce  the  contract  strictly,  the  court  will  so  modify  it  as  to  do  justice  so  far 
as  circumstances  will  permit,  and  refuse  specific  performance  unless  the  party 
seeking  it  will  comply  with  such  modification.  Mechanics'  Bank  of  Alexandria 
V.  Lynn,  i  Pet.,  376. 

^  Secrest  v.  McKenna,  i  Strobh.  Eq.,  356. 

^  Walling  V.  Aiken,  McMuUan  Eq.,  i. 


588  NON-PERFORMANCE    OF    PLAINTIFF.  §  432. 

notes.  Subsequently  B.  assigned  the  original  contract  to 
C,  who  at  the  time  knew  of  the  additional  indebtedness  of 
B.  to  A.,  but  supposed  that  he  would  be  entitled  to  a  con- 
veyance upon  the  payment  of  the  amount  due  under  the 
first-named  agreement.  On  a  bill  filed  by  C.  against  A., 
for  specific  performance,  it  was  held  that  A.  was  not  bound 
to  convey  the  land,  until  his  advances  to  B.  under  both 
agreements  were  paid.' 

§432.  Exception  to  rule  as  to  performance  by  plaintiff. 
— Marriage  contracts  form  an  exception  to  the  general 
rule  which  requires  the  plaintiff,  when  he  seeks  a  specific 
performance,  to  prove  a  fulfilment  of  the  contract  on  his 
part ;  the  issue  of  the  marriage  not  in  being  at  the  time  of 
such  contracts  having  an  interest  in  the  subject,  as  well  as 
the  immediate  contracting  parties.*  Accordingly,  the  heirs 
of  the  husband  were  compelled  to  settle  a  jointure,  though 
the  husband  had  not  received  the  portion  which  the  wife's 
father  agreed  to  pay.'  If,  however,  it  be  clearly  expressed 
in  marriage  articles  that  it  is  intended  the  covenants  shall 
be  mutually  dependent,  and  they  are  so  framed,  such  inten- 
tion will  prevail."  So,  a  party  in  default,  or  his  assignees, 
will  not  be  entitled  to  the  benefit  of  the  contract  of  the 


'  Reeves  v,  Kimball,  40  N.  Y.,  299. 

'  Lloyd  V.  Lloyd,  2  My.  &  Cr.,  204.  See  Dennison  v.  Gothring,  7  Pa.  St., 
175  ;  Neves  v.  Scott,  9  How.,  197  ;  King  v.  Whitely,  10  Paige  Ch.,  465.  This 
principle  was  commented  upon  by  Lord  Hardwicke  in  Harvey  v.  Ashley,  3  Atk., 
611,  in  which  he  said  :  "  There  is  a  difference  between  agreements  on  marriage 
being  carried  into  execution  and  other  agreements ;  for  all  agreements  besides 
are  considered  as  entire,  and  if  either  of  the  parties  fail  in  performance  of  the 
agreement  in  part,  it  cannot  be  decreed  in  specie,  but  must  be  left  to  an  action 
at  law.  In  marriage  agreements  it  is  otherwise ;  for,  though  the  relations  of 
the  husband  or  wife  should  fail  in  the  performance  of  their  part,  yet  the  children 
may  compel  a  performance.  If  the  mother's  father,  for  instance,  hath  agreed  to 
give  a  portion,  and  the  husband's  father  hath  agreed  to  make  a  settlement, 
though  the  mother's  father  do  not  give  the  portion,  yet  the  children  may  compel 
a  settlement;  for  non-performance  on  one  part  shall  be  no  impediment  to  the 
children's  receiving  the  full  benefit  of  the  settlement.  So,  if  there  be  a  failure 
on  the  part  of  the  father's  relations,  it  is  the  same." 

*  Perkins  v.  Thornton,  Ambl,  502.  See  relative  to  the  same  doctrine,  Han- 
cock v.  Hancock,  2  Vern.,  605  ;  North  v.  Ansell,  2  P.  Wms.,  618  ;  Pyke  v.  Pyke, 
I  Ves.  Sen.,  376;  Ramsden  v.  Hylton,  2  lb.,  304;  Campbell  v.  Ingilby,  21  Beav., 
567;  S.  C.,26  L.  J.  Ch.,  654. 

*  Lloyd  V.  Lloyd,  supra. 


§432.  EXCEPTION    TO    RULE.  589 

Other  party.'  "  If  a  woman  were  to  contract  for  the  settle- 
ment of  an  estate,  which  would  give  a  benefit  to  the  hus- 
band, and  the  latter  were  to  contract  for  the  benefit,  and 
the  wife  make  default  on  her  part,  that  might  be  a  case  in 
which  the  wife  should  not  be  allowed  to  have  the  benefit 
of  the  husband's  contract.  But  that  would  not  affect  the 
children.  They  must  have  the  estate."'  "The  parties 
seeking  a  specific  execution  of  such  articles  may  be  those 
who  are  strictly  within  the  reach  and  influence  of  the  con- 
sideration of  the  marriage,  or  claim  through  them ;  such  as 
the  wife  and  issue  and  those  claiming  under  them ;  or  they 
may  be  mere  volunteers,  for  whom  the  settler  is  under  no 
natural  or  moral  obligation  to  provide,  and  yet  who  are  in- 
cluded within  the  scope  of  the  provisions  in  the  marriage 
articles ;  such  as  his  distant  heirs  or  relatives,  or  mere 
strangers.  Now  the  distinction  is,  that  marriage  articles 
will  be  spec:fically  executed  upon  the  application  of  any 
persons  within  the  scope  of  the  consideration  of  the  mar- 
riage, or  claiming  under  such  persons ;  but  not  generally 
upon  the  application  of  mere  volunteers.  But  where  the 
bill  is  brought  by  persons  who  are  within  the  scope  of  the 
marriage  consideration,  or  claiming  under  them,  there 
courts  of  equity  will  decree  a  specific  execution  through- 
out, as  well  in  favor  of  the  mere  volunteers  as  of  the  plain- 
tiff in  the  suit.  So  that,  indirectly,  mere  volunteers  may 
obtain  the  full  benefit  of  the  articles  in  the  cases  where 
they  could  not  directly  insist  upon  such  right.  The 
ground  of  the  peculiarity  is,  that,  when  courts  of  equity 
execute  such  articles  at  all,  they  execute  them  in  toto,  and 
not  partially."'  Where,  however,  by  the  course  of  events, 
there  is  a  failure  of  the  marriage  settlement  as  to  acts  to  be 
done  by  the  wife,  collaterals  cannot  enforce  against  the 
husband  what  is  contracted  to  be  done  by  him.' 

1  Mitford  V.  Mitford,  9  Yes.,  87,  96  ;  Basevi  v.  Serra,  14  lb.,  313. 

*  Lord  Redesdale  in  Crofton  v.  Ormsby,  2  Sch.  &  Lef,  602,  603. 

'  2  Story's  Eq.  Juris.,  Sec.  986. 

^  Savill  V.  Savill,  2  Coll.  C.  C,  721  ;  Campbell  v.  Ingilby,  21  Beav.,  579. 


590  NON-PERFORMANCE    OF    PLAINTIFF.  §  433. 

§  433.  Bankruptcy  or  insolvency  of  plaintiff. — On  the 
ground  that  the  plaintiff  in  a  suit  for  specific  performance 
must  be  ready  and  wilHng  to  perform  on  his  part,  if  the 
vendor  commit  an  act  of  bankruptcy,  he  cannot  enforce 
the  contract  against  his  grantee/  On  the  same  principle, 
if  the  bankrupt  be  the  purchaser,  he  cannot  enforce  the 
contract,  as  the  vendor  could  not  be  sure  of  being  able  to 
retain  the  purchase  money  when  paid."  So,  the  assignees 
of  a  bankrupt  cannot  enforce  a  contract  entered  into  by 
the  bankrupt,  unless  they  personally  bind  themselves  by 
the  same  covenants  the  bankrupt  would  have  entered  into.' 
And,  in  England,  the  vendor  may  compel  the  assignees  to 
elect  whether  they  will  adopt  or  repudiate  the  contract  of 
sale.'  It  may  be  objected  to  a  suit  for  specific  perform- 
ance that  the  plaintiff  is  insolvent.'  But  the  insolvency 
must  be  clearly  proved."  Where  the  contract  is  for  a 
lease,  it  need  not  be  proved  that  the  plaintiff  has  taken 
the  benefit  of  the  insolvent  act,  or  that  he  has  surrendered 
his  property  for  the  benefit  of  his  creditors.  But  it  must 
be  shown  that  the  plaintiff,  in  consequence  of  his  insolv 
ency,  is  not  in  a  situation  to  perform  his  covenants.'     If 


'  Lowes  V.  Lush,  14  Ves.,  547.  In  England,  "  Upon  the  sale  of  a  bankrupt's 
estate,  he  is  usually  made  to  convey  and  covenant  for  title.  His  covenants,  how- 
ever, are  obviously  of  little  value  ;  and  it  would  seem  that  he  cannot  be  com- 
pelled to  execute  a  conveyance.  But  the  court  of  bankruptcy  is  empowered, 
upon  the  application  of  the  assignees  or  of  the  purchaser,  if  the  bankrupt  shall 
not  try  the  validity  of  the  adjudication,  or  if  there  shall  have  been  a  verdict  at 
law  establishing  its  validity,  to  order  the  bankrupt  to  join  in  the  conveyance ; 
and  if  he  do  not  execute  it  within  the  time  directed  by  the  order,  then  he,  and 
all  persons  claiming  under  him,  will  be  estopped  from  objecting  to  such  convey- 
ance ;  and  all  estate,  right,  or  title  which  he  had  in  the  property  will  be  as  ef- 
fectually barred  as  if  such  conveyance  had  been  actually  executed  by  him." 
Dart's  V.  &  P.,  250,  251. 

*  Franklin  v.  Lord  Brownlow,  14  Ves.,  550. 

'  Sutton,  ex  parte,  2  Rose,  86 ;  Willingham  v.  Joyce,  3  Ves.,  168 ;  Powell  v. 
Lloyd,  2  Y.  &  J.,  372  ;  Weatherall  v.  Gearing,  12  Ves.,  513  ;  Brooke  v.  Hewitt, 
3  lb.,  253. 

*  12  and  13  Vict.,  Ch.  106,  Sec.  146.     See  Sims  v.  McEwen,  27  Ala.,  184. 

*  Crosbie  v.  Tooke,  i  M.  &  K.,  431.  In  Price  v.  Assheton,  i  Y.  &;  C.  Ex., 
441,  whsre  the  suit  was  brought  for  the  specific  performance  of  a  contract  to  re- 
new a  lease,  it  being  proved  that  the  plaintiff  was  insolvent,  the  bill  was  dis- 
missed, the  court  refusing  to  compel  the  defendant  to  accept  an  insolvent  lessee. 

*  Neale  v.  Mackenzie,  i  Keen,  474.  '  Ibid.,  Willingham  v.  Joyce,  supra. 


§  434-  NON- PERFORMANCE    OF    CONDITION.  59 1 

the  lessee  has  made  valuable  improvements  under  a  cove- 
nant to  renew,  with  a  clause  in  the  lease  for  renewal,  his 
insolvency  is  a  less  serious  objection.'  In  case  of  the  as- 
signment of  the  contract,  the  insolvency  of  the  assignee 
would  be  a  defence  ;  but  not  that  of  the  original  con- 
tractor.' The  felony  of  the  plaintiff  would  prevent  his  en- 
forcing the  contract.'  A  like  result  will  follow  when  the 
vendor  is  plaintiff,  and  he  is  unable  to  prove  the  due  exe- 
cution of  the  deeds  which  constitute  his  title ;  or,  in  En- 
gland, where  the  title  deeds  must  be  transferred  to  the 
vendee  as  muniments  of  title,  when  it  is  out  of  the  ven- 
dor's power  to  do  this  in  consequence  of  their  destruc- 
tion.* 

§  434.  Non-performance  of  condition. — When  the  con- 
tract is  conditional,  the  non-performance  of  the  plaintiff 
may  consist  in  the  non-fulfilment  of  the  condition.  If  the 
condition  has  been  performed,  the  contract  becomes  abso- 
lute for  all  purposes,  the  same  as  if  it  had  been  originally 
made  without  reference  to  any  contingency/  But  until 
the  condition  has  been  performed,  the  contract  is  incapable 
of  being  specifically  enforced,  and  consequently  the  defence 
may  rest  on  this  ground.  The  condition  may  be  precedent 
or  subsequent.  If  it  be  a  condition  precedent,  it  avoids 
the  estate  by  not  permitting  the  estate  to  vest  until  the 
condition  is  literally  performed.  In  case  it  be  a  condition 
subsequent,  the  non-performance  defeats  the  estate  by  di- 
vesting the  party  of  his  title  and  the  interest  already 
vested ;  because  its  continuance  is  made  to  depend  upon 
the  performance  of  the  act,  or  the  happening  of  the  stipu- 
lated contingency.  This  distinction  is  material,  for  the 
reason  that  a  court  of  equity  "  can,  upon  principle,  inter- 
fere with  and  control  the  effect  of  one  species  of  condi- 
tion and   not  of  the  other.     A  man  enters  into  a  contract, 


■  Hyde  v.  Skinner,  2  P.  Wms.,  197.  "^  Crosbie  v.  Tooke,  supra. 

^  Willingham  v.  Joyce,  supra.  *  ^  Bryant  v.  Brush,  4  Russ.,  i. 

^  Regent's  Canal  Co.  v.  Ware,  22  Beav.,  586. 


592  NON-PERFORMANCE    OF    PLAINTIFF.  §  434. 

or  makes  a  deed,  or  settlement,  or  a  will  (the  instrument  is 
immaterial),  and  he  agrees  to  grant  or  devise  an  estate 
upon  a  condition  which  he  declares  must  be  performed  be- 
fore the  person  to  be  benefited  can  take  it.  No  court  of 
law  or  equity  can  have  a  right  to  say  that  the  condition 
which  is  lawful  in  itself,  and  one  the  party  had  a  right  to 
impose,  shall  be  dispensed  with.  In  order  to  do  this,  the 
contract  or  act  of  the  party  himself  must  be  annulled,  and 
one,  created  by  the  court,  put  in  its  place.  The  principle 
whereon  the  court  is  to  act  in  relation  to  conditions  subse- 
quent is  widely  different.  In  cases  of  this  sort,  if  a  breach 
or  non-performance  happens  the  effect  of  which  is  to  work 
a  forfeiture,  or  divest  an  estate,  the  court,  acting  upon  the 
principle  of  compensation  to  the  party  for  the  injury  sus- 
tained by  the  breach,  will  interpose  and  prevent  the  for- 
feiture. On  account  of  the  nature  of  conditions  subse- 
quent, they  are  said  to  fall  within  the  lenient  principle  by 
which  equity  relieves  against  penalties  ;  and  the  court  will 
only  give  relief  where  compensation  can  be  made  in  dam- 
ages. There  may  even  be  cases  of  conditions  subsequent 
unperformed,  in  which  the  court  will  not  relieve  from  for- 
feiture on  account  of  the  difficulty  of  ascertaining  with  any 
degree  of  certainty  the  amount  or  adequacy  of  compensar 
tion  to  be  allowed."'  No  precise  or  technical  words  are 
required  to  make  a  condition  precedent  or  subsequent. 
The  construction  must  be  governed  by  the  intention  of  the 
parties.  The  same  words  have  been  construed  both  ways, 
and  much  has  been  made  to  depend  upon  the  order  of  time 
in  which  the  conditions  are  to  be  performed.  If  the  act  or 
condition  does  not  necessarily  precede  the  vesting  of  the 
estate,  but  may  accompany  or  follow  it,  and  if  the  act  may 
be  as  well  done  after  as  before  the  vesting  of  the  estate,  or 
if,  from  the  nature  of  the  act  to  be  performed,  and  the 
time  required  for  its  performance,  it  is  evidently  the  inten- 
tion of  the  parties  that  the  estate  shall  vest,  and  the  grantee 

•  McCoun,  V.  C,  in  Wells  v.  Smith,  2  Edw.  Ch.,  78. 


§  434- 


NON-PERFORMANCE    OF    CONDITION.  59' 


perform  the  act  after  taking  possession,  then  the  condition 
is  subsequent/  Where  the  vendee  covenanted  to  make 
payment  on  a  day  named,  otherwise  the  contract  to  be  void, 
and  was  prevented  from  doing  so,  but  made  a  tender  the 
following  day,  it  was  held  a  condition  precedent  against 
which  the  court  could  not  relieve."  But  a  condition  in  a 
deed  of  real  estate  to  a  railroad  company  that  they  shall 
construct  their  road  on  the  property  within  a  specified  time 
is  a  condition  subsequent,  and  the  title  vests  in  the  com 


Underbill  v.  Saratoga  &  Washington  R.R.  Co.,  20  Barb.,  455.  It  is  some- 
times a  question  how  far  the  contract  of  a  railroad  company  is  conditional  upon 
its  obtaining  a  charter.  A  company,  previous  to  its  incorporation,  entered  into 
a  contract,  conditional  upon  the  passing  of  the  act,  to  purchase  certain  land  for 
four  thousand  live  hundred  pounds  and  pay  for  consequential  damage  to  the 
land-owner's  property,  the  company  agreeing  to  construct  a  bridge  over  the 
railway,  to  make  a  deviation  of  the  line,  and  other  works,  dependent  upon  the 
formation  of  the  company.  The  act  passed  ;  but  the  road  was  abandoned,  and 
the  time  for  taking  the  land  had  expired.  The  court  remarked  that  nine-tenths 
of  the  agreement  had  become  impracticable  in  consequence  of  the  abandonment 
of  the  railway  ;  and,  though  it  did  not  decide  the  point,  it  inclined  to  the  opinion 
that  the  contract  was  conditional  not  only  on  the  passing  of  the  bill,  but  on  the 
making  of  the  railroad.  Webb  v.  Direct  London  &  Portsmouth  R.R.  Co.,  i  De 
G.  M.  &  G. ,  521.  And  see,  to  the  same  effect,  Lord  James  Stuart  v.  London  & 
Northwestern  R.R,  Co.,  lb.,  721.  Contra,  Hawkes  v.  Eastern  Counties  R.R. 
Co.,  lb.,  737  ;  S.  C,  5  House  of  Lds.,  331.  In  another  case,  a  railroad  company 
covenanted  with  a  land-owner  that,  in  the  event  of  the  passing  of  an  act  in  the 
then  present  session  for  extending  their  powers,  the  company  should,  before  en- 
tering on  any  part  of  the  land,  pay  the  owner  four  thousand  nine  hundred 
pounds  for  any  portion  of  his  land,  not  exceeding  forty-three  acres,  which  the 
company  might  require  and  take,  and  seven  thousand  one  hundred  pounds  as 
landlord's  compensation  for  damages  caused  by  the  severance.  In  a  suit, 
brought  by  the  land-owner  against  the  company,  it  was  held  that  the  covenant 
was  not  for  the  payment  of  a  given  sum  for  the  withdrawal  by  the  plaintiff  of 
his  opposition,  but  a  payment  as  purchase  money  and  compensation  for  sever- 
ance, to  which  the  company  was  not  liable  when  no  land  was  required  or  taken, 
and  no  severance  made.  Gage  v.  Newmarket  R.R.  Co.,  18  Q.  B  ,  457.  And 
see  Edinburgh,  Perth  &  Dundee  R.R.  Co.  v.  Philip,  2  M'Q.,  514.  A  party  en- 
titled to  the  performance  of  conditions  precedent  may,  of  course,  waive  them. 
Beatson  v.  Nicholson,  6  Jur.,  620. 

-  Wells  v.  Smith,  stipra  ;  Affd.,  7  Paige  Ch.,  22.  In  this  case,  the  perform- 
ance of  a  condition  precedent  on  or  before  the  particular  day  specified,  was  es- 
sential to  the  vendor's  security.  The  deed  of  the  lot  was  to  be  delivered  on  a 
specified  day,  and  the  purchase  money  to  be  secured  by  a  bond  and  mortgage 
on  the  premises,  and  the  purchaser  was  to  build  a  house  of  a  certain  size  and 
character  on  the  land  before  that  time,  or  pay  one  thousand  dollars  of  the  pur- 
chase money  on  that  day,  at  his  election.  But  he  did  neither  ;  and,  by  the 
terms  of  the  agreement,  the  vendor  was  not  to  give  the  deed  and  take  the  bond 
and  mortgage  in  that  event.  Moreover,  the  purchaser  had  only  paid  for  the  use 
of  the  property.  So  that  there  was,  in  fact,  no  forfeiture,  except  the  loss  of  a 
profitable  speculation  which  the  purchaser  failed.to  avail  himself  of  by  his  non- 
performance of  the  condition  precedent.  See  Edgerton,  v  Peckham,  1 1  Paige 
Ch..  352. 


38 


594  NON-PERFORMANCE    OF    PLAINTIFF.  §  435. 

pany  upon  the  delivery  of  the  conveyance."  Where  A. 
covenanted  to  convey  to  B.  one-half  of  certain  lands,  "  on 
the  said  B.  being  at  one-half  the  expense  for  procuring  the 
title,"  it  was  held  that  the  payment  of  the  expense,  as  it 
accrued,  was  a  condition  precedent,  and  that  as  B.  had 
failed  to  fulfil  it,  he  was  not  entitled  to  a  decree  for  specific 
performance.'  In  a  suit  for  the  specific  performance  of  a 
contract,  it  appeared  that  the  defendant  executed  to  the 
plaintiffs  a  writing  in  which  he  agreed  that  they  might  ex- 
plore, bore,  or  in  any  manner  test,  certain  land  supposed 
to  contain  petroleum  oil,  and  that,  in  case  they  found  oil, 
or  were  satisfied  that  there  was  any  there,  he  would  grant  a 
lease  for  one-fourth  the  net  profits  of  all  oil  taken  there- 
from, or  for  one-fourth  of  the  stock,  if  a  company  should 
be  formed.  It  was  held  that  the  discovery  of  oil  in  suffi- 
cient quantities  to  warrant  undertaking  the  business  was  a 
condition  precedent  to  the  execution  of  the  lease  by  the 
defendant.' 

§  435.  Relief  in  case  of  breach  of  condition  precedent. — 
A  court  of  equity  may  relieve  against  the  breach  of  a  con- 
dition precedent  in  the  nature  of  a  penalty.     The  substan- 

1  Nicoll  V.  N.  Y.  &  Erie  R.R.  Co.,  12  N.  Y.,  121  ;  Affg.  S.  C,  12  Barb.,  460. 
'  Hutchinson  v.  McNutt,  i  Ohio,  14. 

2  Mendenhali  v.  Klinck,  50  Barb.,  634..  If  land  be  sold  subject  to  the  comple- 
tion of  certain  erections  thereon,  equity  will  not  enforce  specific  performance 
before  the  fulfilment  of  the  conditions.  Whiting  v.  Gould,  2  Wis.,  552.  A 
vendor  of  real  estate,  havihg  given  his  bond  conditioned  to  execute  a  convey- 
ance at  a  specified  time  after  the  payment  of  the  last  instalment,  it  was  held 
that  the  purchaser  was  not  entitled  to  specific  performance  of  the  contract  until 
the  money  had  been  paid.  Delassus  v.  Poston,  19  Mo.,  425,  So,  where  A. 
bought  certain  land  of  B.,  subject  to  an  agreement  that  the  property  should  be 
conveyed  to  C,  upon  his  payment  of  a  stipulated  sum,  it  was  held  that  A.  could 
not  be  compelled  to  convey  until  C.  had  paid  the  whole  purchase  money.  Gib- 
son v.  Milne,  i  Nev.,  526.  A  father  having  deeded  to  his  son  a  homestead  in 
consideration  that  the  son  would  support  him  for  life,  a  reconveyance  was  de- 
creed on  account  of  the  son's  failure  to  fulfil  his  contract  to  give  his  father  a 
comfortable  support,  without  requiring  the  latter  to  refund  the  money  paid  by 
the  son  for  taxes.  Penfield  v.  Penfield,  41  Conn.,  474.  Where  A.  made  a  con- 
tract with  B.,  his  daughter's  husband,  by  which  B.  was  to  cultivate  A.'s  land 
and  provide  certain  things  for  A.,  and  at  his  death  have  a  complete  title  to  the 
whole,  and  afterward  B.'s  wife  drove  A.  out  of  the  house,  and  B.  went  to  A.'s 
house  and  cursed  him,  and  A.  removed  to  another  place  and  sold  the  land,  it 
was  held  that  B.  could  not  sustain  a  bill  for  specific  performance,  it  being  un- 
certain whether  B.  had  complied  with  his  part  of  the  contract  prior  to  A.'s  re- 
moval.    Southworth  v.  Hopkins,  11  Mo.,  331. 


§  435-   CASE  OF  BREACH  OF  CONDITION  PRECEDENT.      595 

tial  difference  which  governs  courts  of  equity  in  cases  of 
conditions,  is  not  whether  the  condition  be  precedent  or  sub- 
sequent, but  whether  compensation  can  or  cannot  be  made.' 
But  the  court  is  not  bound,  in  all  cases  where  compensa- 
tion can  be  made,  to  give  relief.  The  party  asking  relief 
may  have  so  conducted  himself  as  to  have  lost  all  claim  to 
its  interposition.  He  may  have  refused  to  perform  the 
contract,  or  have  renounced  all  rights  under  it.  When 
this  is  not  the  case,  and  it  is  equitable  under  the  circum- 
stances that  relief  should  be  given,  it  is  competent  for  the 
court  to  give  it.  A  circumstance  which  wnll  always  have 
great  weight  with  the  court  is,  that  the  condition  has  been 
in  part  performed  ;  that  the  party  has  done  in  part  what  he 
was  bound  to  do  to  entitle  him  to  what  he  asks,  and  stands 
ready  to  make  good  the  deficiency.'  "  Penalties,  forfeit- 
ures, and  re-entries,  for  conditions  broken,  are  not  favored 
in  equity,  and  constitute  a  large  branch  of  equitable  re- 
lief. Usually,  they  are  held  to  be  securities  for  the  pay- 
ment of  money,  and  the  performance  of  conditions  ;  and, 
where  compensation  can  be  made  for  non-payment  and 
non-performance,  equity  will  relieve  against  the  rigid  en- 
forcement of  the  contract.  This  is  upon  the  principle  that 
a  court  of  equity  is  a  court  of  conscience,  and  will  permit 
nothing  to  be  done  within  its  jurisdiction  which  is  uncon- 
scionable. But  it  is  not,  therefore,  to  be  supposed  that  a 
court  of  equity  will  lightly  dispense  with  contracts  made 
between  competent  parties,  and  substitute  other  agree- 
ments more  in  accordance  with  variable  rules  of  right  and 
conscience.  Every  presumption  will  be  made  in  favor  of 
such  contracts,  and  they  will  be  enforced  according  to  the 
intention  of  the  parties  expressed  and  implied,  unless  it 
can  be  shown  that  thereby  some  hardship  or  wrong,  not 

'  2  Cruise  Dig.,  40;  De  Forest  v.  Bates,  i  Edw.  Ch.,  405.  But  see  Armstrong 
V.Wyandotte  Bridge  Co.,  McCahon,  Kans.,  166;  Laning  v.  Cole,  3  Green 
Ch.,  229. 

'  Chipman  v.  Thompson,  Walk.  (Mich.)  Ch.,  405.  See  Radcliffe  v.  Warring- 
ton, 12  Ves.,  326. 


596  NON-PERFORMANCE    OF    PLAINTIFF.  §  436. 

within  the  presumed  contemplation  of  the  parties  at  the 
time,  will  result  from  such  enforcement."  *  Where  the  lan- 
guage of  an  agreement  can  be  resolved  into  a  covenant, 
the  judicial  inclination  is  so  to  construe  it.  And  hence  it 
has  resulted  that  certain  features  have  ever  been  held  es- 
sential to  the  constitution  of  a  condition,  in  the  absence  of 
which  it  is  not  deemed  to  exist." 

§  436.  Defatdt  in  respect  to  time. — When,  on  a  sale  of 
real  estate,  the  parties  do  not  appear  to  have  made  the 
time  for  the  payment  of  the  purchase  money  essential,  the 
court  will  compel  the  vendor  to  convey,  although  the 
purchase  money  was  not  paid  at  the  time  agreed,  if  com- 
pensation can  be  made  for  the  delay,  and  it  seems  to  be 
conscientious  that  the  property  should  be  conveyed."  If, 
however,  payment  at  the  time  fixed  is  a  material  and  es- 
sential part  of  the  contract,  unless  the  money  be  paid  at  the 
time  stipulated,  the  obligation  of  the  vendor  to  convey  is 
at  an  end  But  to  this  general  doctrine  there  are  many  ex- 
ceptions and  qualifications.*  The  broad  ground  of  giving 
relief  as  a  rule,  where  a  forfeiture  has  been  occasioned  by 
the  non-payment  of  money  at  the  stipulated  time,  upon  an 
offer  to  pay  the  same  and  accrued  interest,  has  not  been 
fully  sanctioned  by  the  English  courts.'  When  parties 
have  deliberately,  by  their  agreements  or  covenants,  fixed  a 


'  Scudder,  J.,  in  Grigg  v.  Landis,  21  N.  J.  Eq.,  494.  See  Livingston  v.  Tomp- 
kins, 4  Johns  Ch.,  431  ;  2  Story's  Eq.  Juris.,  Sees.  1314,  1316. 

*  Paschall  v.  Passmore,  15  Pa.  St.,  295.  A  conveyance  of  real  estate  subject 
to  certain  mortgages  thereon,  "  to  be  assumed  and  paid  by  the  grantee,  his 
heirs  and  assigns,  the  same  making  part  of  the  consideration,"  on  the  condi- 
tion that  the  grantor  and  his  representatives  shall  be  forever  indemnified  and 
saved  harmless  from  the  payment  of  such  mortgages,  is  a  conditional  grant, 
and  not  in  the  nature  of  a  mortgage  from  the  grantee  to  the  grantor.  Hancock 
v.  Carlton,  6  Gray,  39. 

^  Clark  V.  Lyons,  25  111.,  105  ;  Snyder  v.  Spaulding,  57  lb.,  480;  post,  §467. 
Vendee  relieved  from  a  forfeiture  where  he  neglected  to  pay  the  interest  due  on 
a  mortgage  against  which  he  had  agreed  to  indemnify  the  vendor,  upon  payment 
of  the  mortgage  debt,  interest  and  costs.  Sanborn  v.  Woodman,  5  Cush.,  36. 
See  ante,  §  419. 

*  Hall  V.  Delaplaine,  5  Wis.,  206.  See  White  and  Tudor's  Leading  Cases  in 
Equity,  3. 

'•  See  Hancock  v.  Carlton,  supra. 


§  437-      CASE  OF  BREACH  OF  CONDITION  SUBSEQUENT.  597 

time  for  the  performance  of  an  act,  a  court  of  equity  will 
be  very  cautious  how  it  interferes  in  disregard  of  it,  and 
thus,  in  effect,  change  the  contract  which  the  parties  have 
made.  It  will  not  do  this,  unless,  by  reason  of  mistake,  or 
some  other  cause  falling  within  the  legitimate  powers  of  a 
court  of  equity,  it  shall  see  that  justice  demands  the  exer- 
cise of  its  jurisdiction  irrespective  of  the  lapse  of  such 
time.  But  if  a  party,  who  insists  upon  exact  time,  has 
himself  been  the  cause  of  delay,  a  court  of  equity  will, 
notwithstanding,  decree  specific  performance.'  The  vendor 
is  not  entitled  to  forfeit  the  contract  as  against  the  vendee, 
when  he  is  himself  in  no  condition  to  perform  ; "  even 
though  by  the  terms  of  the  contract  he  has  the  right  to  de- 
clare it  forfeited,  and  to  retain  what  has  already  been  paid, 
if  the  vendee  makes  default'  But  the  party  seeking  re- 
lief from  a  forfeiture,  must  show  that  circumstances 
which  exclude  the  idea  of  wilful  neglect  or  gross  careless- 
ness, have  prevented  a  strict  compliance,  or  that  it  has  been 
occasioned  by  the  fault  of  the  other  party,  or  that  a  strict 
compliance  has  been  waived.'  Where  a  bond  was  given  to 
convey  real  estate  upon  the  payment  by  the  purchaser  of 
certain  notes,  and,  if  they  were  not  paid  according  to  their 
tenor,  the  bond  was  to  be  void,  and  default  was  made  in 
such  payment  in  consequence  of  the  severe  illness  of  the 
purchaser  and  his  inability  to  attend  to  his  business,  and 
the  vendor  had  sustained  no  loss  which  would  not  be  com- 
pensated by  the  accrued  interest,  specific  performance  was 
decreed." 

§  437.  Relief  in  case  of  breach  of  condition  subsequent. 
— It  has  been  the  invariable  practice  in  equity  to  relieve 
against   forfeitures  arising   from  the  breach  of  conditions 

'  Potter  V.  Tuttle,  22  Conn.,  512  ;  Savage  v.  Brocksopp,  18  Ves.,  335  ;  post, 
§461. 

"^  Converse  v.  Blumrich,  14  Mich.,  109. 

^  Wallace  v.  McLaughlin,  57  III.,  53. 

*  Jones  v.  Robbins,  29  Me.,  351  ;  Hipwell  v.  Knight,  i  Y.  &  C.  Ex.,  415  ; 
Brashier  v,  Gratz,  6  Wheat.,  533. 

'  Jones  V.  Robbins,  supra. 


598  NON-PERFORMANCE    OF    PLAINTIFF.  §  437. 

subsequent,  where  compensation  can  be  made  for  the  fail- 
ure of  precise  performance.'  If  land  be  conveyed  subject 
to  a  mortgage,  a  covenant  by  the  grantee  that  he  will  in- 
demnify the  grantor  therefrom,  principal  and  interest,  is 
broken  by  a  neglect  to  pay  the  interest ;  and,  after  a  re- 
entry by  the  grantor  for  breach  of  the  condition,  a  tender 
by  the  grantee  of  the  principal  and  interest  with  an  offer 
of  indemnity  will  not  constitute  a  defence  to  a  suit  to  en- 
force the  forfeiture.  But  if  the  grantee's  default  was  not 
wilful,  a  stay  of  proceedings  may  be  ordered  on  payment 
of  the  mortgage  debt,  interest  and  costs."  Real  estate 
was  devised  to  the  sons  of  the  testator,  on  condition  that 
they  should  pay  to  each  of  his  daughters  three  hundred 
dollars  within  a  year  after  his  decease.  The  devisees  hav- 
ing failed  to  pay  the  amount  within  the  year,  the  heirs  at 
law  became  entitled  to  the  estate.  On  a  bill  in  equity, 
filed  by  the  devisees,  alleging  a  tender  of  the  money,  and 
praying  for  title  to  the  lands,  the  breach  of  the  condition 
was  relieved  against.'     Where  a  contract  for  the  sale  of 

'  Popham  V.  Bampfeild,  i  Vern.,  79 ;  Woodman  v.  Blake,  2  lb.,  222 ;  Walker 
V.  Wheeler,  2  Conn.,  299.  Although,  by  the  terms  of  a  lease,  it  is  provided  that 
if  any  of  the  covenants  on  the  part  of  the  tenant  are  broken,  the  unexpired  term 
shall  cease  and  determine,  yet,  if  the  lease  also  contains  a  clause  that  in  case  of 
non-performance  of  such  covenants  the  landlord  may  re-enter,  the  lease  is  void- 
able only  at  the  election  of  the  landlord,  but  not  void.  Stuyvesant  v.  Davis,  9 
Paige  Ch.,  427. 

^  Sanborn  v.  Woodman,  5  Cush.,  36.  The  proceedings  in  the  foregoing  case 
were  at  law  by  a  writ  of  entry. 

*  Walker  v.  Wheeler,  supra.  In  this  case  it  was  argued  that  a  much  larger 
estate  was  given  by  the  testator  to  his  sons  than  to  his  daughters,  and  that,  as 
the  sons  had  failed  to  perform  the  condition,  and  had  thereby  lost  their  title  at 
law,  the  estate  ought  to  be  divided  among  the  heirs,  so  that  the  daughters  would 
get  their  share ;  that  it  was  unreasonable  that  a  court  of  equity  should  interfere 
and  take  away  the  legal  estate  from  the  daughters,  and  give  it  to  the  sons,  who 
had  a  less  equitable  right,  as  they  had  already  received  a  much  larger  share  of 
the  property  than  the  daughters.  Swift,  Ch.  J.,  said  :  "  In  these  cases  courts  of 
equity  cannot  be  governed  by  such  considerations.  It  is  a  fundamental  princi- 
ple of  law  and  equity  that  every  man  has  a  right  to  dispose  of  and  give  away  his 
property  after  his  decease,  in  such  manner  as  he  may  think  proper,  provided  he 
conforms  to  the  rules  of  law,  and  the  will  of  the  testator  must  be  pursued  and 
carried  into  effect  if  legally  expressed.  Here  the  intent  of  the  testator  was  to 
give  the  lands  to  the  sons  ;  and,  though  they  have  not  literally  complied  with  the 
conditions  of  the  devise,  so  that  the  estate  is  gone  at  law,  yet  a  court  of  equity, 
by  well-known  and  long-established  rules,  is  now  as  much  bound  to  regard  the 
intent  of  the  testator,  and  to  give  it  effect,  as  a  court  of  law  would  have  been  had 
the  conditions  of  the  devise  been  performed.     No  injustice,  then,  is  done  in  tak- 


§  43^'  PLAINTIFF    READY    TO    FULFIL.  599 

real  estate  is  clear,  certain,  fair,  and  mutual,  valuable  im- 
provements made,  a  large  part  of  the  purchase  money- 
paid,  the  premises  in  the  possession  of  the  purchaser  a  long 
time,  and  no  change  in  the  condition  of  the  property,  the 
vendee  will  be  entitled  to  specific  performance,  although 
he  did  not  make  his  last  payment  at  the  time  specified  in 
the  contract,  which  provided  that  if  the  vendee  made  de- 
fault, the  vendor  should  be  discharged  from  the  agreement, 
and  the  purchaser  forfeit  all  his  previous  payments,' 

§  438.  Plaintiff  required  to  show  that  he  is  ready  to 
fulfil. — Under  the  rule  that  a  person  who  seeks  specific 
performance  must  himself  be  ready  and  willing  to  perform, 
the  question  of  tender  arises.'  When  the  bill  is  filed  by 
the  vendor,  he  must  show  a  tender  of  title  and  an  offer  to 
fulfil   on   his  part.'     So,  a  tender  of  the  purchase  money 

ing  the  estate  from  those  who  have  the  legal  title  ;  for  this  is  carrjing  into  effect 
the  intent  of  the  testator,  who  had  an  indubitable  right  to  dispose  of  his  estate 
in  this  manner.  The  present  case  is  free  from  doubt,  and  the  relief  sought  is 
entirely  conformable  to  good  conscience."     lb.,  per  Hosmer,  J. 

'  Edgerton  v.  Peckham,  11  Paige  Ch.,  352.  A  forfeiture  for  breach  of  a  con- 
dition subsequent  in  a  deed  of  land,  by  the  terms  of  which  certain  mort- 
gages are  to  be  assumed  and  paid  by  the  grantee,  his  heirs  and  assigns,  and  the 
grantor  indemnified  and  saved  harmless  from  the  payment  thereof,  will  be  re- 
lieved against  in  equity,  unless  there  has  been  laches  on  the  part  of  the  grantee. 
Hancock  v.  Carlton,  6  Gray,  39.  Covenants  in  a  deed  prescribing  the  mode  in 
which  the  property  shall  be  improved,  and  in  restraint  of  the  use  which  shall  be 
made  of  it,  will  be  sustained  where  the  restriction  is  confined  within  reason- 
able bounds,  and  the  party  in  whose  favor  they  are  made  is  interested  in  the 
subject  matter  of  the  restriction.  Brewer  v.  Marshall,  18  N.  J.  Eq.,  337  ;  Grigg 
V.  Landis,  21  lb.,  494;  Whatm.an  v.  Gibson,  9  Sim.,  196;  Western  v.  McDer- 
mot,  L.  R.  i,Eq.  499;  S.  C,  L.  R.  2,  Ch.  72;  Mitchell  v.  Steward,  L.  R.  i,  Eq. 
541  ;  Barrow  v.  Richard,  8  Paige  Ch.,  351.  The  court  in  adjudging  specific 
performance  of  an  agreement  for  a  lease  may  direct  the  lease  to  be  dated  at  a 
time  antecedent  to  alleged  breaches,  in  order  to  give  an  action  upon  the  cove- 
nants. Mundy  v.  Joliffe,  5  My.  &  Cr.,  167;  Pain  v.  Coombs,  i  De  G.  &  J.,  34; 
Noonan  v,  Orton,  21  Wis.,  283. 

2  The  distinction  between  a  suit  for  specific  performiance  in  equity  and  an  ac- 
tion at  law  for  damages  for  non-performance,  is  this,  that  in  the  latter  the  right 
of  action  grows  out  of  a  breach  of  the  contract,  and  a  breach  must  exist  before 
the  commencement  of  the  action  ;  while  in  the  former  the  contract  itself,  and 
not  a  breach  of  it,  gives  the  action.     Bruce  v.  Tilson,  25  N.  Y.,  107. 

"^WodigQ?,,  ex  parte,  24  Ark.,  197;  Mix  v.  Beach,  46  111.,  113;  McHugh  v. 
Wells,  39  Mich.,  175.  The  vendor  must  show  that  he  has  tendered  a  good  and 
sufficient  deed  before  he  can  enforce  the  contract.  Sowle  v.  Holdridge,  63  Ind., 
213.  Where  the  purchaser  of  land  assigns  his  contract  before  payment  becomes 
due,  and  the  assignee  neglects  to  pay  before  the  vendor  files  his  bill  for  specific 
performance,  it  is  proper  for  the  latter  to  tender  a  conveyance  to  the  original 
purchaser.     Corbus  v.  Teed,  69  111.,  205.     Whether  it  is  incumbent  on  the  ven- 


600  NON-PERFORMANCE    OF    PLAINTIFF.  §  438. 

must  be  made  by  the  vendee  before  a  conveyance  can  le- 
gally be  required."  A  verbal  contract  for  the  sale  and  pur- 
chase of  land  provided  that  the  vendee  should  pay  one 
thousand  dollars  down,  and  four  thousand  dollars  in  two 
months  thereafter,  with  interest  at  two  per  cent,  a  month, 
and  the  time  for  payment  had  elapsed.  It  was  held  that 
to  entitle  the  vendee  to  specific  performance,  he  must  show 
that  he  had  paid  or  tendered  the  whole  amount  with  the 
interest.''  Presumption  of  payment  arising  from  lapse  of 
time  is  not  sufficient  to  entitle  one  to  specific  performance 

dor  to  tender  a  conveyance  before  a  tender  of  the  purchase  money,  query, 
Scarlett  v.  Stein,  40  Md.,  512.  A.  sold  land  to  B.,  gave  bond  for  title,  and  took 
B.'s  notes  for  the  purchase  money.  B.  did  not  pay  the  notes  when  due,  and  A. 
sold  the  land  to  C.,  with  notice  of  the  sale  to  B.  B.  filed  a  bill  offering  to  pay 
the  notes,  and  demanding  title.  Specific  performance  was  decreed  on  payment 
of  the  notes,  though  the  decision  would  have  been  different  if  A.  had  offered  to 
comply  with  his  part  of  the  contract  before  selling  to  C.  Hines  v.  Baine,  i  Sm. 
&  Marsh  Ch.,  530.  A  vendor  who,  when  the  purchase  money  is  tendered,  the 
property  then  being  worth  more  than  the  price  agreed  upon,  refuses  to  convey, 
and,  after  waiting  until  the  property  has  depreciated  below  that  amount,  offers 
to  fulfil,  will  not  be  entitled  to  the  aid  of  a  court  of  equity  to  compel  specific  per- 
formance. Tobey  v.  Foreman,  79  111.,  489.  An  action  by  the  executors  of  a  de- 
ceased vendor,  to  foreclose  a  lien  for  the  purchase  money,  under  a  contract  for 
the  sale  of  land,  cannot  be  maintained,  without  alleging  and  showing  that  they 
have  the  title  to  the  land,  and  that  they  tendered  a  deed,  or  were  willing,  able, 
and  ready  to  give  one.  Thompson  v.  Smith,  63  N.  Y.,  301.  Although  the  ven- 
dor has  a  lien  for  the  unpaid  purchase  money,  yet,  if  he  require  the  aid  of  the 
court,  he  must  bring  a  suit  and  get  the  lien  declared  against  all  w'ho  are  inter- 
ested in  the  estate,  or,  at  least,  against  all  persons  who  are  subsequent  to  him 
in  date,  and  who  will  be  foreclosed  by  his  decree.  Where,  therefore,  a  decree 
for  the  specific  performance  of  a  contract  of  sale  had  been  obtained  by  the  ven- 
dor against  a  railroad  company,  in  which  the  amount  due  for  damages  and  costs 
were  directed  to  be  ascertained,  and  such  amount,  when  found,  together  with 
the  purchase  money,  to  be  paid,  it  was  held  that  the  vendor  could  not  enforce  a 
lien  on  the  land  for  the  sums  due,  as  against  incumbrancers,  not  parties  to  the 
suit,  whose  rights  would  be  affected  by  such  lien.  Atty.-Genl.  v.  Sittingbourne 
&  Sheerness  R.R.  Co.,  L.-  R.  i,  Eq.  636. 

'  Huff  V.  Jennings,  Morris  (Iowa),  454 ;  Bearden  v.  Wood,  i  A.  K.  Marsh, 
450;  Greenup  v.  Strong,  i  Bibb.,  590;  McComas  v.  Easley,  21  Gratt.,  29; 
Heuer  v.  Rutkowski,  18  Mo.,  216;  Irvin  v.  Bleaksley,  67  Pa.  St.,  24.  See  Tan- 
ner V.  Peck,  I  Barb.  Ch.,  549 ;  Brillinger  v.  Kitts,  6  Barb..  273 ;  Beebe  v.  Dowd, 
22  lb.,  255  ;  Lanning  v.  Tompkins,  45  lb.,  308;  Chase  v.  Hogan,  3  Abb.  Pr.  N. 
S.,  59 ;  Goodale  v.  West,  5  Cal.,  339.  To  stop  the  payment  of  interest  a  tender 
of  the  purchase  money  must  be  kept  good,  and  the  money  not  be  used  by  the 
vendee  for  other  purposes.     Bissell  v.  Heyward,  6  Otto,  580. 

^  Hoen  V.  Simmons,  i  Cal.,  119.  It  is  not  necessary  in  all  cases  for  a  plaintiff 
to  perform  or  offer  to  perform  fully  on  hie  part,  in  order  to  maintain  a  suit  for 
specific  performance.  Equity  will  not  require  of  him  as  a  condition  precedent 
to  his  filing  a  bill,  that  he  should  have  made  payments  which  he  could  not  make 
with  safety  and  justice  to  the  rights  of  others.  Kellogg  v.  Lavender,  9  Nebr., 
418. 


§  439-  WHAT    A    SUFFICIENT    TENDER.  6oi 

of  a  contract  to  convey  land.'  Where  the  vendee  of  land, 
as  a  part  consideration  for  the  purchase  money,  agreed  to 
work  for  the  vendor  for  a  period  of  time,  but  neglected  to 
do  so,  and  tendered  a  sum  of  money  after  the  time  fixed 
for  the  execution  of  the  deed  as  an  equivalent  for  the  non- 
performance of  the  labor,  it  was  held  that  he  was  not  enti- 
tled to  a  specific  performance  of  the  contract,  unless  he 
w^as  prevented  from  doing  the  work  by  the  vendor.' 

§  439.  What  a  sufficient  te7ider.— With  regard  more 
particularly  to  what  constitutes  an  offer  to  perform,  it  is 
sufficient,  in  general,  that  a  party  has  made  a  bona  Jide, 
reasonable,  and  earnest  effort  to  fulfil ;  and  the  court  will 
disregard  technical  objections  on  the  other  side  which  have 
the  appearance  of  an  attempt  to  get  rid  of  the  contract. 
Where  the  complainant,  in  his  bill  for  the  specific  per- 
formance of  an  agreement  for  the  exchange  of  land,  showed 
that  he  notified  the  other  party  to  meet  him  and  exchange 
deeds  at  the  place  designated  for  the  purpose  in  their  con- 
tract, and  that  he  was  there  accordingly  with  his  deed, 
which  he  left  to  be  delivered  to  the  other  party,  who  had 
not  made  his  appearance,  it  was  held  that  it  was  a  sufficient 
tender  and  request.^     A  tender  of  payment,  in  order  to  dis- 

'  Morey  v.  Farmer's  Loan  &  Trust  Co.,  14  N.  Y.,  302.  In  this  case  the  ven- 
dee of  lands,  who  had  been  sued  in  ejectment,  filed  his  complaint  against  the 
holder  of  the  legal  title  to  compel  the  execution  of  a  conveyance,  on  the  ground 
that  the  vendee  had  performed  the  contract  on  his  part,  and  was  equitably  enti- 
tled to  the  relief  demanded.  There  was  no  evidence  of  actual  payment  of  the 
purchase  money ;  the  vendee  relying  upon  the  legal  presumption  of  payment. 
His  complaint  was  dismissed,  for  the  reason  that  he  could  not  avail  himself  of 
the  statute  presumption  to  raise  an  equitable  title  in  him.  And  see  Lawrence 
v.  Ball,  14  N.  Y.,  477.  Specific  performance  will  not  be  decreed  of  an  agree- 
ment to  convey  land  when  the  plaintiff  shows  no  compliance  or  offer  of  compli- 
ance on  his  part  with  the  agreement,  nor  any  excuse  therefor,  for  the  period  of 
twenty-one  or  twenty-two  months  from  the  time  he  bound  himself  to  perform. 
Green  v,  Covilland,  10  Cal.,  317. 

^  Brewer  v.  Thorp,  3  Ind.,  262.  When  real  and  personal  property  are  sold 
together  under  one  contract  for  a  gross  sum,  the  whole  sum  is  chargeable  to  the 
real  estate,  and  the  whole  of  the  purchase  money  must  be  paid  or  tendered  be- 
fore conveyance  wiU  be  decreed.     McComas  v.  Easley,  supra. 

^  Daily  v.  Litchfield,  10  Mich.,  29.  In  general,  the  acceptance  of  a  deed  for 
land  is  to  be  dt&m&d  prima  facie  completion  of  an  executory  agreement  to  con- 
vey, and  thenceforth  the  agreement  becomes  void,  and  the  rights  of  the  parties 
are  to  be  determined  by  the  deed,  and  not  by  the  agreement.  Covenants  col- 
lateral to  the  deed  are  exceptions  to  this  rule,  and  cases  may  occur  in  which  the 


602  NON-PERFORMANCE    OF    PLAINTIFF.  §  439. 

charge  the  conditions  of  a  contract,  may  be  made  at  any 
hour  of  the  day  fixed  for  its  performance,  when  it  would 
not  be  unreasonable  to  require  the  party  to  whom  the  ten- 
der is  made  to  accept  payment.  It  would  be  sufficient  if 
made  at  night  before  the  party  has  retired  to  rest,  and 
under  circumstances  which  would  not  impose  inconvenience 
or  risk  upon  him.'  Where  a  purchaser  of  land,  on  the  day 
for  making  payment  and  delivery  of  the  deed,  sought,  but 
could  not  find  the  vendor,  and,  believing  that  she  was  in- 
tentionally evading  his  tender  of  payment,  he  deposited 
the  money  in  a  bank  at  six  o'clock  in  the  evening,  and  on 
his  way  home,  after  such  deposit,  met  the  vendor,  who  ten- 
dered the  deed,  and  demanded  the  money,  which  the 
vendee  was  unable  to  pay,  it  was  held  that  the  latter  was 
entitled  to  a  decree  for  specific  performance.'  Partnership 
articles  provided  that  no  partner  should  sell  the  shares  ex- 
cept as  follows :  To  his  partners  collectively ;  in  case  they 
should  decline,  -to  the  partners  desirous  of  collectively  pur- 
giving  of  a  deed  will  constitute  but  a  part  performance  of  the  contract.  An 
executed  contract  supersedes  all  prior  negotiations  and  agreements,  where  the 
last  contract  covers  the  whole  subject  embraced  in  the  prior  one.  But  where 
the  stipulation  is  to  do  a  series  of  acts  at  successive  periods,  or  distinct  and 
separable'  acts  simultaneously,  the  executory  contract  becomes  extinct  only  as  to 
such  of  its  parts  as  are  covered  by  the  conveyance.  Long  v.  Hartwell,  34  N.  J. 
L.,  116,  per  Van  Syckel,  J. 

'  McCiartey  v.  Cokey,  31  Iowa,  505.  Where  the  vendor  made  ineffectual  ef- 
forts to  find  the  vendee  and  tender  the  deed  at  the  time  agreed,  it  was  held 
that  he  was  entitled  to  specific  performance.     Buess  v.  Koch,  10  Hun.,  299. 

"^  Hall  v.  Whittier,  10  R.  L,  530.  A  party  has  the  whole  of  a  day  agreed  on 
in  which  to  perform  the  contract.  A  purchaser  refused  to  complete  because 
the  property  sold  was  incumbered  by  a  mortgage,  and  the  vendor,  with  the 
knowledge  of  the  purchaser,  met  the  holder  of  the  mortgage  by  appointment  to 
cancel  the  mortgage  whenever  the  purchase  money  was  paid,  and  the  mortgagee 
remained  there  until  quite  late  in  the  day  for  that  purpose.  The  mortgagee 
having  finally  left,  the  money  was  tendered.  The  vendor  then  offered  to  send 
for  the  mortgagee,  and  obtain  satisfaction  as  soon  as  he  could  get  to  his  house 
and  return,  by  twelve  o'clock  that  night.  The  purchaser  replied  that  he  could 
not  or  would  not  wait.  It  was  held  that  the  purchaser  had  waived  any  further 
effort  of  the  vendor  to  obtain  a  satisfaction  piece,  and  was  precluded  from  in- 
sisting that  the  vendor  had  failed  to  perform.  Karker  v.  Haverly,  50  Barb.,  79. 
An  averment  that  the  plaintiff  executed  a  conveyance  on  a  certain  day,  and 
transmitted  it  as  soon  as  practicable  after  the  execution  of  the  contract,  is  bad. 
It  should  be,  that  he  both  executed  and  transmitted  it  as  soon  as  practicable. 
Or,  if  there  are  special  circumstances  equivalent  in  equity  to  strict  performance 
at  the  stipulated  time,  such  as  acquiescence  by  the  defendant,  these  should  be 
set  out,  in  order  to  give  the  defendant  an  opportunity  to  traverse  or  demur. 
Bellas  V.  Hays,  5  Serg.  &  Rawle,  427. 


§  439-  WHAT    A    SUFFICIENT    TENDER.  603 

chasing  ;  if  there  were  none  such,  to  the  partners  individu- 
ally ;  or,  finally,  to  a  stranger.  One  of  four  partners 
offered  his  shares  to  the  other  three  collectively,  one  of 
whom  he  knew  would  not  buy.  The  other  two  stated  their 
willingness  to  accept,  but  were  told  that  no  offer  was  made 
to  them.  It  was  held  that  the  offer  to  the  three  inured 
to  the  benefit  of  the  two,  and  that  they  were  entitled  to 
specific  performance.'  Z.  entered  into  a  contract  with  K. 
to  sell  him  land,  payment  to  be  made  in  three  instalments 
with  interest,  for  which  notes  were  to  be  given.  It  was 
agreed  that,  on  payment  of  the  first  two  notes,  Z.  was  to 
give  K.  a  deed  with  covenants  against  his  own  acts,  and  K. 
was  to  give  back  a  mortgage  on  the  property  to  secure  the 
last  note.  The  first  note  was  paid  ;  and  before  the  second 
note  fell  due,  Z.  deeded  the  land  to  G.,  subject  to  the  con- 
tract with  K.,  with  a  covenant  of  warranty  against  the  acts 
of  the  grantor.  Afterward,  K.  sold  to  M.  G.  demanded 
from  K.  payment  of  the  second  note,  and  tendered  him  a 
deed  from  himself,  with  the  covenants  mentioned  in  Z.'s 
contract.  K.  said  he  could  do  nothing,  and  G.  then  for- 
mally demanded  payment  and  execution  of  the  mortgage. 
Subsequently,  G.  demanded  payment  of  the  two  notes  then 
due  of  M.,  the  assignee  of  K.,  and  tendered  him  the  deed 
from  Z.,  and  also  a  deed  from  himself,  and  demanded  pay- 
ment of  the  second  note,  and  a  mortgage  to  secure  pay- 
ment of  the  third  note.  It  was  held  that  the  tender  of  the 
deed  from  Z.  to  G,  and  which  was  offered  by  G.  to  M., 
was  a  sufficient  assignment  of  Z.'s  covenants  when  taken  in 
connection  with  the  tender  of  the  deed  from  G  to  M.  ;  but 
that,  to  make  the  tender  effectual,  so  as  to  give  the  vendee 
the  right  of  possession,  if  the  payor  was  unwilling  to  take 
the  deed  of  M.,  the  money  should  have  been  offered  and  a 
deed  demanded  of  Z.,  with  an  offer  to  execute  the  mort- 
gage.' Where  the  purchaser  of  land  dies  before  a  convey- 
ance is  completed,  it  is  proper  for  the  vendor  to  make 

'  Homfray  v.  Fothergill,  L.  R.  i,  Eq.  567.        "  Gaven  v.  Hagan,  15  Cal.,  208. 


604  NON-PERFORMANCE    OF    PLAINTIFF.       §§  44O,  44 1. 

out  a  deed  to  the  heirs  and  devisees,  and  tender  it  to  the 
executor,  who  represents  the  testator's  means  of  paying 
for  the  land.' 

§  440.  Offer  of  less  than  the  contract  calls  for. — The  fact 
that  the  vendee,  having  made  a  computation  of  the  pur- 
chase money  due,  tendered  an  amount  sHghtly  short  of  the 
correct  amount,  will  not  prevent  his  act  from  being  a  good 
offer  of  performance  if  the  vendor  made  no  objection  to 
the  amount,  but  wholly  refused  to  fulfil  on  his  part'  Al- 
though there  has  not  been  a  strict  legal  compliance  with 
the  terms  of  the  contract,  yet  if  the  non-compliance  does 
not  go  to  the  essence  of  the  contract,  relief  will  be 
granted."  Where  a  person  contracts  to  sell  the  whole  of 
certain  land,  when  he  in  fact  only  owns  an  undivided  half, 
to  entitle  the  purchaser  to  enforcement  of  the  contract  to 
the  extent  of  the  vendor's  interest,  it  is  necessary  for  him 
to  pay  or  tender  one-half  of  the  contract  price.* 

§  441.  Payment  into  court. — Although,  where  a  strict, 
unconditional  tender  is  required,  it  must  be  kept  good  by 
the  actual  payment  of  the  money  into  court  for  the  sole 
and  exclusive  use  of  the  party  to  whom  the  tender  was 
made,*  and  tender  and  payment  are  an  admission  by  the 

'  Brinkerhoff  v.  Olp,  35  Barb.,  27. 

*  Clark  V.  Drake,  63  Mo.,  354;  Irvin  v.  Gregory,  13  Gray,  215  ;  McDonald  v. 
Kimbrell,  3  Iowa,  335.  Where  a  person  contracted  to  sell  land  at  forty  per 
cent,  above  its  cost,  with  a  credit  of  one  year,  it  was  held  not  to  b^  usurious, 
and  that,  in  a  suit  to  compel  specific  ^performance,  a  tender  of  the  original 
price  with  six  per  cent,  interest  was  insufficient.   Cassady  v.  Scallen,  1 5  Iowa,  93. 

'  Smoot  V.  Rea,  19  Md.,  398  ;  Maughlin  v.  Perry,  35  lb.,  352  ;  Mix  v.  Beach, 
46  111.,  311.  A  vendor  agreed  to  convey  land  in  consideration  that  the  vendee 
would  perform  certain  labor  and  pay  a  given  sum  of  money.  The  work  was 
done,  but  when  the  money  was  due  the  vendor  was  away.  It  was  held  that  a 
tender  of  the  money  and  interest  to  the  vendor  immediately  on  his  return  was 
sufficient  to  entitle  the  vendee  to  a  decree  for  specific  performance.  Clark  v. 
Sears,  3  Iowa,  104. 

*■  Marshall  v.  Caldwell,  41  Cal.,  611. 

'  Doyle  V.  Teas,  4  Scam.,  202.  There  is  a  breach  of  a  contract  to  convey, 
upon  tender  of  the  purchase  money  and  refusal,  and  it  need  not  be  shown  that  the 
tender  was  kept  good.  Allen  v.  Atkinson,  21  Mich.,  351  ;  King  v.  Ruckman,  21 
N.  J.  Eq. ,  599  ;  McDonald  v,  Kimbrell,  supra.  As  to  what  was  deemed  a  suffi- 
cient tender  of  United  States  treasury  notes,  see  Davis  v.  Parker,  14  Allen,  94; 
of  money  payable  in  instalments,  Rogers  v.  Taylor,  40  Iowa,  193;  Blackner  v. 
Phillips,  67  N.  C,  340.     When  the  payment  of  money  is  a  condition  precedent, 


§  441-  PAYMENT    INTO    COURT.  605 

party  making  the  tender  and  paying  the  money,  that  the 
adverse  party  is  entitled  to  it,  and  may  take  it  out  when- 
ever he  pleases  ;  yet  when  the  tender  is  conditional,  as  in 
a  suit  for  specific  performance,  or  to  have  a  deed  absolute 
on  its  face  decreed  to  be  a  mortgage,  or  the  like,  the  pay- 
ment of  the  money  into  court  is  not  an  admission  that  the 
money  so  paid  belongs  absolutely  to  the  adverse  party. 
But  it  is  an  admission  that  the  money  belongs  to  him  when 
the  condition  upon  which  the  tender  was  made  has  been 
complied  with  by  such  party,  or  the  court  has  decreed  a 
performance.  A  party  cannot  receive  money  conditionally 
paid  into  court  while  he  denies  the  existence  of  the  con- 
tract upon  which  it  is  paid/  Where  the  vendor  puts  the 
purchaser  in  possession,  upon  an  understanding  between 
them  that  the  latter  shall  not  pay  the  purchase  money  until 
he  has  a  title,  the  purchaser  cannot  be  called  to  pay  the 
money  into  court ;  the  understanding  becoming  a  matter  of 
contract,  by  which  the  vendor  must  abide.''  So,  the  vendee 
cannot  be  compelled  to  pay  the  purchase  money  into  court 
before  the  completion  of  the  title,  when  the  vendor  has 
voluntarily  permitted  him  to  take  possession  without  any 
stipulation  about  paying  the  purchase  money.'  And  so,  if 
the  purchaser  be  in  possession  under  a  title  anterior  to  the 
contract,  or  if  possession  were  given  independently  of  the 

and  a  tender  of  performance  is  made,  it  entitles  the  vendee  to  performance  on 
the  part  of  the  vendor,  and  the  money  need  not  be  brought  into  court  until  the 
vendor  demands  it.  Washburn  v.  Dewey,  17  Vt.,  92.  But  where  it  was  al- 
leged that  a  tender  of  payment  had  repeatedly  been  made,  and  that  the  plaintiff 
had  at  all  times  been  and  still  was  ready  and  willing  to  pay,  it  was  held  that  the 
tender  should  have  been  stated  with  greater  particularity.  Duff  v.  Fisher,  15 
Cal.,  375.  And  see  Hart  v.  McClellan,  41  Ala.,  251.  Where  the  only  allegation 
of  tender  was  that  the  plaintiff  "  has  been  ready  and  willing  during  all  the  time 
aforesaid,  and  has  offered  to  accept  and  take  said  conveyance,  pursuant  to  said 
agreement,  and  to  pay  the  balance  of  said  purchase  money,"  it  was  held  iiisuffi- 
cient.  "  To  constitute  a  valid  tender  in  such  a  case,  the  party  must  have  the 
money  at  hand,  immediately  under  his  control,  and  must  then  and  there  not 
only  be  ready  and  willing,  but  produce  and  offer  to  pay  it  to  the  other  party  on 
the  performance  by  him  of  the  requisite  conditions."  Englander  v.  Rogers,  41 
Cal.,  420,  per  Crockett,  J.     See  Strong  v.  Blake,  46  Barb.,  227. 

'  Lynch  v.  Jennings,  43  Ind.,  276;  Soule  v.  Holdridge,  25  lb.,  119. 

"  Gibson  v.  Clarke,  i  Yes.  &  B.,  500. 

2  Clarke  v.  Elliott,  i  Mad.,  606. 


6o6  NON-PERFORMANCE    OF    PLAINTIFF.  §  442. 

contract,  and  there  is  laches  on  the  part  of  the  vendor  in 
completing  his  title,  the  court  will  not  order  the  purchase 
money  to  be  paid  in.'  But  a  non-resident  purchaser  of 
real  estate  who  filed  a  bill  for  specific  performance  of  the 
contract  of  sale,  was  required  to  pay  the  purchase  money 
into  court,  though  he  was  not  in  possession  of  the  prop- 
erty.' 

§  442.  Right  of  party  upon  failure  of  the  other  to  fulfil. 
— When  time  is  not  of  the  essence  of  the  contract,  if  the 
purchaser  without  sufficient  excuse  fail  to  make  payment, 
and  the  vendor  is  in  no  default,  and  is  able  and  ready  to 
perform  all  that  the  contract  then  requires  of  him,  he  may 
notify  the  vendee  to  pay  within  a  reasonable  time,  or  he, 
the  vendor,  will  consider  and  treat  the  contract  as  rescinded. 
In  like  manner,  the  vendee  may  notify  the  vendor,  if  the 
latter  is  in  default.'  But  to  entitle  either  party  to  specific 
performance  of  a  contract  in  which  time  is  made  essential, 
it  must  be  shown  that  a  performance,  or  a  tender  of  per- 
formance, was  made  at  the  day  stipulated."  Where  a  day 
is  specified  in  a  contract  for  the  payment  of  the  purchase 
money  and  the  delivery  of  the  deed,  and  the  time  is  al- 
lowed to  pass  without  payment  or  a  tender  of  the  deed, 
the  time  for  the  performance  of  the  parties  becomes  indefi- 
nite, but  mutual  and  dependent."  If  the  consideration  of 
a  contract  is  to  be  paid  the  ist  of  August,  it  means  on  or 
before  that  day,  and  a  tender  made  on  the  31st  of  July  is 
good.*  Where  a  contract  of  sale  provided  that  in  case  the 
vendee  failed  to  make  his  payments  at  the  time  agreed, 
"strictly  and  literally,  without  any  default,  the  contract 
should  become  void,  and  all  rights  and  interests  thereby 

*  Freebody  v.  Parry,  Cooper,  91  ;  Fox  v.  Birch,  i  Mer.,  105. 
«  Binns  v.  Mount,  28  N.  J.  Eq.,  24. 

'  Kirby  v.  Harrison,  2  Ohio  St.,  320 ;  Remington  v.  Irwin,  14  Pa.  St.,  143 ; 
Hamill  V.  Thompson,  3  Colorado,  518;  Hendrickson  v.  Hendrickson,  51  Iowa, 
68.     Sttposl,  Ch.  XVI. 

*  Wells  V.  Smith,  7  Paige  Ch.,  22. 

*  Hatton  V.  Johnson,  83  Pa.  St.,  219. 

*  Parker  v.  McAllister,  14  Ind.,  12. 


§  444-       PAYMENT  NOT  MADE  UNTIL  DEED  DELIVERED.  607 

created  cease  and  determine,  and  the  property  revert  to, 
and  revest  in,  the  vendor,  without  any  declaration  of  for- 
feiture or  act  of  re-entry,  or  without  any  right  on  the  part 
of  the  vendee  of  reclamation  or  compensation,"  and  the 
notes  given  for  the  purchase  money  were  not  paid,  it  was 
held  competent  for  the  vendor  to  declare  a  forfeiture  with- 
out offering  to  return  the  notes/ 

§  443.  Offer  to  perform  necessary  to  put  the  other  party 
in  default. — When  the  purchaser  is  to  pay,  and  the  vendor 
upon  payment  to  convey,  performance,  or  an  offer  to  per- 
form, is  a  condition  precedent  to  the  right  to  insist  upon 
performance  by  the  other  party.'  So,  where  a  contract  of 
sale  provides  that  a  certain  sum  shall  be  paid  on  a  day 
named,  and  the  balance  be  secured  by  a  bond  and  mortgage 
on  the  property,  to  be  given  upon  the  delivery  of  the  deed, 
if  the  payment  be  made,  a  deed  must  be  tendered  to  put 
the  vendee  in  default,  notwithstanding  the  time  of  pay- 
ment was  extended  at  the  solicitation  of  the  vendee  with 
the  understanding  that  the  contract  must  be  closed  at  the 
expiration  of  such  extension.'  If  the  vendor  has  given  a 
bond  to  make  title  upon  the  payment  of  the  purchase 
money,  and  he  cannot  make  a  good  title,  the  purchaser 
should  tender  the  money  and  demand  a  title,  or  at  any  rate, 
in  a  suit  to  restrain  the  collection  of  the  price,  aver  a  readi- 
ness to  fulfil  on  his  part  upon  a  sufficient  title  being  made.* 

§  444.  Payment  need  not  be  made  until  deed  delivered. — 
Although,  when  a  strict  tender  is  required,  it  must  be  an 
unconditional  offer  of  the  full  amount  due,  leaving  it  only 
at  the  will  of  the  other  to  accept  it,  yet  when  one  is  to  pay 
money,  and  the  other  to  give  a  conveyance,  no  time  fixed, 
and  no  provision  that  either  shall  be  done  first,  the  cove- 
nants being  mutual  and  dependent,  one  is  not  bound  to 
pay  without  receiving  his  conveyance,  nor  the  other  to  part 

'  Phelps  V.  111.  Centr.  R.R.  Co.,  63  111.,  468. 

*  Barron  v.  Frink,  30  Cal.,  488  ;  Hill  v.  Grigsby,  35  lb.,  656. 

'  Leiard  v.  Smith,  44  N.  Y.,  618.  *  Smith  v.  Robinson,  11  Ala.,  840. 


6o8  NON-PERFORMANCE    OF    PLAINTIFF.  §  444. 

with  his  land,  without  receiving  his  money.'  In  such  case, 
it  is  not  necessary,  on  the  part  of  the  purchaser,  to  make  a 
strict  tender  and  actually  to  deliver  over  the  money  uncon- 
ditionally without  his  deed.  It  is  sufficient  that,  upon 
reasonable  notice  to  the  owner,  he  is  ready  and  willing  to 
perform,  and,  when  the  performance  is  the  payment  of 
money,  that  he  has  the  money,  and  is  able  and  prepared  to 
pay,  and  demands  the  deed,  and  the  other  refuses  to  receive 
the  money  and  execute  the  deed."  The  offer  of  the  party 
making  the  demand  to  perform  his  part  of  the  agreement, 
is  implied,  and  a  refusal  of  the  other  party  to  comply,  dis- 
penses with  any  other  offer.'  Where  the  payees  of  notes 
agreed  that  should  the  maker,  or  his  legal  representatives, 
pay  the  notes  as  they  respectively  became  due,  then  and  in 
that  case  the  payees  or  their  successors  would  convey  cer- 
tain land  to  the  maker,  it  was  held  that  the  maker  was  not 
bound  to  pay  the  last  instalment  at  all  events,  and  be  left 
to  the  chance  of  afterward  getting  a  deed  or  damxages  for 
its  non-delivery ;  but  that  the  promise  to  pay  the  last  instal- 
ment on  the  appointed  day,  was  dependent  on  the  maker's 
receiving  the  deed  at  the  same  time.'    The  undertakings  of 

'  Lester  V.  Jewett,  11  N.  Y.,  453;  O'Kane  v.  Kiser,  25  Ind.,  168.  A  purchaser 
in  possession  under  the  contract  cannot  resist  payment  of  the  purchase  money. 
Lett  V.  Brown,  56  Ala.,  550  ;  Sivoly  v.  Scott,  lb.,  555  ;  Wyatt  v.  Gariington,  lb., 
576;  Strong  V.  Waddell,  lb.,  471.  But  "  the  court  will  not  order  purchase 
money  to  be  paid  before  a  title  is  given,  unless  under  special  circumstances  ; 
such  as  taking  possession  contrary  to  the  intention,  or  against  the  will  of  the 
vendor;  or  where  the  purchaser  makes  frivolous  objections  to  the  title,  or  throws 
unreasonable  obstacles  in  the  way  of  completing  the  purchase;  or  is  exercising 
improper  acts  of  ownership  by  which  the  property  is  lessened  in  value."  The 
vice-chancellor  in  Birdsall  v.  Waldron,  2  Ed.  Ch.,  315.  See  Van  Campen  v. 
Knight,  63  Barb.,  205.  Of  course  the  vendor  cannot  maintain  a  suit  for  specific 
performance  until  the  last  payment  is  due.     Jones  v.  Boyd,  80  N.  C,  258. 

*  Kane  v.  Hood,  13  Pick.,  381  ;  Irwin  v.  Gregory,  13  Gray,  215;  Lynch  v. 
Jennings,  supra  ;  Hunter  v.  Bales,  24  Ind.,  299. 

^Rawson  v.  Johnson,  i  East.,  208;  Tinney  v.  Ashley,  15  Pick.,  546.  But  see 
Englander  v.  Rogers,  41  Cal.,  420. 

*  McCulIoch  V.  Dawson,  i  Ind.,  413.  And  see  Leonard  v.  Bates,  I  Blackf., 
172;  Cunningham  v.  Gwinn,  4  lb.,  341.  If  the  purchase  money  is  payable  in 
instalments,  and  the  conveyance  is  to  be  e.xecuted  on  the  last  day  of  payment, 
the  covenants  to  pay  the  instalments  are  independent  covenants,  and  suit  may 
be  brought  thereon,  without  conveying  or  offering  to  convey.  But  covenants  to 
pay  instalments  which  fall  due  on  or  after  the  day  appointed  for  the  conveyance, 
are  dependent  covenants,  and  the  'vendor,  in  his  suit  to  recover  the  same, 


§  445-  DEMANDING    PERFORMANCE.  609 

the  respective  parties  are  always  considered  dependent, 
unless  a  contrary  intention  clearly  appears.  A  different 
construction  would,  in  many  cases,  lead  to  the  greatest  in- 
justice, and  a  purchaser  might  have  payment  of  the  pur- 
chase money  enforced  against  him  and  yet  be  unable  to 
procure  the  property  for  which  he  paid  it.' 

§  445.  Demanding  performance. — According  to  some  of 
the  decisions,  to  maintain  a  suit  for  specific  performance 
where  it  is  necessary  to  show  an  offer  of  performance  by 
the  plaintiff,  it  is  also  necessary  for  him  to  prove  that  he 
demanded  fulfilment  on  the  part  of  the  defendant ; '  or 
allege  some  excuse  for  not  having  done  so.  An  averment 
that  the  defendant  is  insolvent,  is  not  a  sufficient  excuse 
for  neglecting  that  requirement.'     But    other   cases   hold 

whether  he  sues  for  those  alone,  or  joins  instalments  that  become  due  before 
the  time,  must  show  a  conveyance,  or  offer  to  convey.  Hill  v.  Grigsby,  35  Cal., 
656.  Where  it  is  agreed  that  the  land  shall  be  paid  for  in  three  instalments, 
and,  upon  the  payment  thereof,  the  purchaser  shall  receive  a  conveyance,  the 
covenants  are  dependent,  and  neither  party  can  recover  against  the  other,  with- 
out averring  a  tender  of  performance  on  his  part.  A  mere  readiness  to  perform 
is  not  sufficient.  If  the  vendor  sues  for  the  purchase  money,  he  must  aver  a 
tender  of  such  a  deed  as,  by  the  terms  of  the  contract,  he  was  to  give.  If  the 
action  is  brought  by  the  vendee  against  the  vendor  for  not  conveying,  he  must 
aver  a  tender  of  the  purchase  money  before  suit  brought.  Johnson  v.  Wygant, 
II  Wend.,  48  ;  Green  v.  Reynolds,  2  Johns,  207  ;  Jones  v.  Gardner,  10  lb.,  266  ; 
Gazley  v.  Price,  16  lb.,  267  ;  Parker  v.  Parmele,  20  lb.,  130.  Where  the  money 
is  to  be  paid  to  a  third  person,  it  indicates  the  intention  and  understanding  of 
the  parties  that  the  payment  is  to  be  first  made.  In  such  case,  the  vendee  is 
bound  to  produce  evidence  of  payment  in  the  first  instance,  and  it  is  not  suffi- 
cient to  aver  a  general  readiness  on  his  part  to  perform.  Northrup  v.  North- 
rup,  6  Covven,  296  ;  Slocum  v.  Despard,  8  Wend.,  615. 

^  Bank  of  Columbia  v.  Hagner,  i  Pet.,  455. 

'^  Hubbell  V.  Von  Schoening,  49  N.  Y.,  326 ;  Delavan  v.  Duncan,  Ib.^,  485  ; 
Kimball  v.  Tooke,  70  111.,  553  ;  Crabtree  v.  Levings,  53  lb.,  526;  Gale  v.  A'rcher, 
42  Barb.,  320  ;  Walker  v.  Douglas,  73  III,  445  ;  Sheets  v.  Andrews,  2  Blackf., 
274 ;  Brown  v.  Hart,  7  lb.,  ^29  ;  Bowen  v.  Jackson,  8  lb.,  203  ;  Mather  v.  Scoles, 
35  Ind.,  I  ;  Wright  v.  Le  Clain,  4  Greene  (Iowa),  420.  See  Fairbanks  v.  Dow, 
6  N.  H.,  266.  A  demand  for  a  conveyance  "is  best  calculated  to  secure  the 
specific  execution  of  contracts,  and  to  prevent  a  multiplicity  of  suits.  Besides, 
it  may  be  often  a  convenience  to  the  purchaser,  for  a  variety  of  reasons,  not  to 
receive  the  title  as  soon  as  he  is  entitled  to  it ;  and  he  may,  therefore,  prefer  its 
continuance  for  some  time  in  the  vendor.  If  he  can  obtain  the  tide  to  which  he 
has  a  right  whenever  he  may  choose  to  demand  it,  he  ought  not  to  complain." 
Sheets  v.  Andrews,  supra. 

'Carter  v.  Thompson,  41  Ala.,  375  ;  Bell  v.  Thompson,  34  lb.,  633.  Where 
the  vendor  gives  to  the  vendee  a  bond  that  he  will,  on  a  specified  day,  make, 
execute,  and  deliver,  a  deed,  provided  the  vendee  on  that  day  pays  certain  prom- 
issory notes,  it  is  necessary  for  the  vendee,  in  an  action  on  the  bond,  to  prove 
that  he  demanded  a  deed.     Kinkead  v.  Shrene,  17  Cal.,  273. 

39 


6lO  NON-PERFORMANCE    OF    TLATNTIFF.  §  446. 

that  a  demand  is  only  material  in  relation  to  the  question 
of  costs.' 

§  446.  When  offer  to  fulfil  dispensed  with. — A  tender  of 
performance  need  not  be  made  when  it  would  be  wholly 
nugatory.'  As  where  the  vendor  is  unable  to  carry  out  the 
contract  for  the  reason  that  the  property  is  incumbered.' 
The  vendee  of  a  house  is  not  bound  to  pay  the  purchase 
money  and  take  a  conveyance  when  a  tenant  wrongfully 
holds  over,  and  may,  by  protracted  litigation,  keep  the 
vendee  from  obtaining  possession  for  a  long  time."  So,  to 
maintain  a  suit  to  compel  an  administrator  to  convey,  there 
need  not  have  been  a  tender  and  demand  if  the  adminis- 
trator could  not  have  conveyed  without  the  direction  of 
the  court."  And  the  executor  of  the  assignee  of  the  ven- 
dor, who  has  no  act  to  perform  in  respect  to  the  contract, 
need  not  tender  a  deed  in  order  to  claim  performance  of 
the  other  party.*  When  the  facts,  alleged  in  the  bill  or 
given  in  evidence,  show  that  an  offer  of  performance  by  the 
plaintiff  would  not  have  been  accepted,  such  offer  is  there- 
by rendered  unnecessary.'     If  the  vendor  denies  the  obli- 

'  Gray  v.  Dougherty,  25  Cal.,  266;  Jones  v.  City  of  Petaluma,  36  lb.,  230  ; 
Morris  v.  Hoyt,  11  Mich.,  9.  Tt  has  been  held  in  New  York,  that,  when  a  con- 
■  tract  for  the  sale  of  land  fixes  no  time  for  its  performance,  but  imposes  upon 
the  vendor  the  duty  to  convey  upon  request,  a  request  before  suit  for  specific 
performance  is  not  necessary.  Bruce  v.  Tilson,  25  N.  Y.,  194.  In  such  case, 
a  demand  before  suit  brought  has  no  bearing  upon  the  merits  or  rights  of  the 
parties.  But  by  a  demand  and  refusal,  the  party  liable  to  perform  is  put  in  the 
wrong,  and  in  the  situation  of  unreasonably  resisting  the  claim  of  his  adversary, 
and  is  therefore  chargeable  with  costs.     Ibid. 

2  Kerr  v.  Purdy,  50  Barb.,  24;  Gill  v.  Newell,  13  Minn.,  462.  A.  entered  into 
a  written  contract  with  B.  to  convey  to  him  certain  land,  provided  B.  would  pay 
two  promissory  notes  of  A.  when  they  became  due.  The  notes  were  secured 
by  a  mortgage  on  the  land.  When  B.  paid  the  notes,  he  caused  them  to  be 
transferred  to  him  by  indorsement.  It  was  held  that  as  the  notes  and  mortgage 
in  B.'s  hands  became  immediately  discharged,  it  was  not  incumbent  on  him  to 
make  a  tender  of  them  before  demanding  a  deed.  Lawson  v.  McKenzie,  44 
Iowa,  663. 

'  Marker  V.  Haverly,  50  Barb.,  79 ;  Morange  v.  Morris,  32  How.  Pr.,  178; 
Delavan  v.  Duncan,  49  N.  Y.,  485. 

*  Howe  V.  Conley,  16  Gray,  552.  ^  Collins  v.  Vanderver,  i  Iowa,  573. 

°  M'Hoon  V.  Wilkerson,  47  Miss.,  633. 

'  Hunter  v.  Daniel,  4  Hare,  420  ;  Seaward  v.  Willock,  5  East.,  202  ;  Poole  v. 
Hill,  6  M.  &  W.,  835  ;  Wilmot  v.  Wilkinson,  6  B.  &  C,  506.  And  see  Lovelock 
V.  Franklyn,  8  Q.  B.,  371  ;  Doogood  v.  Rose,  9  C.  B.,  131.  If  a  party  cannot  be 
compelled  to  perform,  his  ofier  to  perform  is  not  sufficient  to  entitle  him  to  spe- 


§446.  WHEN    OFFER    TO    FULFIL    DISPENSED    WITH.        6ll 

gation  of  the  contract,  resumes  possession  of  the  land,  and 
receives  the  rents  and  profits,  a  tender  by  the  vendee  of  the 
purchase  money  is  not  necessary  to  entitle  him  to  a  decree 
for  specific  performance.'  Where  a  vendor  places  himself 
in  such  a  position  as  to  make  it  appear  that  if  a  tender  of 
the  purchase  price  were  made  its  acceptance  would  be  re- 
fused, the  purchaser  need  not  make  a  tender  in  order  to 
maintain  his  bill.  In  such  case,  an  offer  to  bring  the 
money  into  court  when  the  amount  is  liquidated  and  his 
decree  granted,  is  sufficient."  If  the  vendor  refuses  to  re- 
ceive the  purchase  money  when  tendered,  or  prevents  the 
vendee  from  performing  his  part  of  the  agreement,  thus  in 
effect  making  a  demand  nugatory,  neither  law  nor  equity 
require^  it  of  the  vendee.  Under  such  circumstances,  spe- 
cific performance  will  be  decreed  within  a  certain  time, 
provided  the  vendee,  before  that  time,  shall  have  performed 
on  his  part."  The  mere  neglect  of  the  vendor  to  tender  to 
the  vendee  a  deed,  where  the  vendee  is  not  injured  by  the 
delay,  is  not  sufficient  to  preclude  him  from  maintaining  a 
suit  to  compel  the  vendee  to  receive  the  title.'  Although 
if  the  vendee,  prior  to  the  time  appointed  for  the  payment 
of  the  purchase  money  and  the  delivery  of  the  deed,  noti- 
fies the  vendor  that  he  w^ill  not  take  the  property,  this  will 

cific  performance  as  against  the  other  party.  In  1850,  the  defendant  gave  to  the 
plaintiff  a  bond  to  convey  to  him  land  in  consideration  that  the  plaintiff  should 
effect  a  partition  of  this  and  other  land  between  the  defendant  and  a  joint 
owner.  The  partition  was  partially  effected  that  year,  but  its  completion  was 
postponed  on  account  of  some  difficulties  arising  as  to  the  boundaries.  In 
1857  these  difficulties  were  overcome,  and  the  plaintiff  offered  to  go  on  and 
complete  the  partition.  It  was  held  that,  as  the  plaintiff  could  not  be  compelled 
to  perform,  and  his  offer  to  do  so  was  not  equivalent  to  a  performance,  a  decree 
for  specific  performance  must  be  denied.     Cooper  v.  Pena,  21  Cal.,  403. 

>  Brock  V.  Hidy,  13  Ohio  St.,  306.  But  generally  the  vendee  must  either 
tender  or  bring  into  court  the  amount  due. 

"  Deichman  v.  Deichman,  49  Mo.,  107  ;  Fall  v.  Hazelrigg,  45  Ind.,  576.  See 
Goodall  V.  West,  5  Cal.,  339;  Young  v.  Daniels,  2  Iowa,  126.  Where  a  vendee 
has  offered  to  the  vendor  a  sum  within  a  trifle  of  the  amount  due  under  a  writ- 
ten contract  to  convey  land,  and  holds  himself  in  readiness  to  pay  whatever  the 
court  shall  order,  equity  will  decree  specific  performance  without  a  previous 
tender  of  the  full  amount,  or  bringing  it  into  court.  Irvin  v.  Gregory,  13 
Gray,  215.  • 

^  Gray  v.  Dougherty,  25  Cal.,  266  ;  Washburn  v.  Dewey,  7  Vt.,  92. 
^  Woodson  V.  Scott,  i  Dana,  470. 


6l2  NON-PERFORMANCE    OF    PLAINTIFF.  §  447. 

dispense  with  the  formal  tender  of  a  conveyance  by  the 
latter ;  yet  if  a  vendor,  who  has  received  such  notice,  ap-, 
pHes  to  a  court  of  equity  to  treat  the  agreement  as  an  exe- 
cuted contract,  and  to  direct  a  sale  of  the  property  for  the 
payment  of  the  purchase  money,  his  bill  so  far  partakes  of 
the  character  of  a  bill  for  specific  performance  as  to  make 
it  essential  for  him  to  show  that  he  was  able  and  ready,  at 
the  appointed  time,  to  do  w^hat  by  the  agreement  he  had 
engaged  to  do;  or  that  he  was  disposed,  and,  if  the  con- 
tract had  not  been  renounced  by  the  vendee,  would  have 
been  able,  on  the  day  appointed,  to  perform  on  his  part.' 

§  447.  Tender  in  bill. — In  equitable  actions,  when  an 
offer  to  perform  is  necessary  to  a  recovery,  it  is  sometimes, 
as  in  suits  for  specific  performance,  not  requisite  to  allege 
or  prove  an  offer  to  perform  previous  to  commencing  the 
suit,  an  offer  in  the  complaint  being  sufficient.  This  dis- 
tinction between  legal  and  equitable  actions  growls  out  of 
the  circumstance  that  in  the  latter  the  court  can  protect  the 
rights  of  any  party  entitled  to  performance  in  the  judg- 
ment.'' It  has  been  held  in  New  York  that  where,  in  a 
contract  for  the  sale  of  land,  the  purchase  money  is  to  be 
paid  on  a  particular  day,  and  neither  party  performs  or 
offers  to  perform  on  that  day,  although  neither  can  main- 
tain an  action  at  law  on  the  contract,  yet  either  may  claim 
specific  performance  in  equity,  making  the  offer  incumbent 
on  him  in  the  bill,  and  a  failure  to  make  an  earlier  tender 
will  only  affect  the  question  of  costs.'    So,  it  has  been  held 

'  McKIeroy  v.  Tulane,  34  Ala.,  78. 

-  Thomson  v.  Smith,  63  N.  Y.,  301  ;  Hawk  v.  Greensweig,  2  Pa.  St.,  295 ; 
Winton  v.  Sherman,  20  Iowa,  295  ;  Rutherford  v.  Haven,  1 1  lb..  587  ;  Wells  v. 
Smith,  7  Paige  Ch.,  22.  Contra,  Klyce  v.  Broyles,  37  Miss.,  524.  When  the 
purchaser  is  beyond  the  jurisdiction,  a  bill  by  the  vendor  for  specific  perform- 
ance tendering  a  deed,  is  sufficient,  and  it  need  not  be  alleged  that  a  deed  was 
tendered  before  suit.     Watson  v.  Sawyers,  54  Miss.,  64. 

2  Stevenson  v.  Maxwell,  2  N.  Y.,  408.  But  see  Knickerbocker  v.  Harris,  I 
Paige  Ch.,  209.  It  has  been  held  in  Wisconsin,  that  where  a  person  commences 
a  suit  to  compel  specific  performance,  he  should  prepare  and  tender  a  deed,  but 
that  his  neglect  to  do  so  will  not  defeat  his  right  of  action,  but  only  his  right  to 
costs.  Seely  v.  Howard,  13  Wis.,  336.  Where  the  owner  of  real  estate  en- 
tered into  a  contract  under  seal  to  sell  the  same  and  give  a  deed  upon  payment 
therefor,  which  payment  was  to  be  made  in  five  equal  annual  instalments,  it  was 


§  44^-     PREPARATION  AND  TENDER  OF  DEED.         613 

that  an  action  to  foreclose  an  equitable  lien  for  the  pur- 
chase money  under  a  contract  for  the  sale  of  land,  may  be 
maintained  without  the  previous  tender  of  a  deed,  but  that 
there  should  be  an  offer  in  the  complaint  to  execute  a  con- 
veyance.' The  omission  in  a  bill  for  the  specific  perform- 
ance of  a  contract  for  the  sale  of  real  estate,  of  an  aver- 
ment that  the  plaintiff  is  willing  and  ready  to  perform  the 
agreement  on  his  part,  is  a  defect  of  form  merely,  and  may 
be  amended.*  The  plaintiff  need  not  aver  a  tender  if  he 
allege  that  the  defendant  refused  to  fulfil  the  contract,  and 
expressly  waived  a  tender.^  If  the  vendor  by  his  answer 
to  the  suit  of  the  vendee  submit  to  perform,  he  may,  by 
cross  bill,  compel  the  vendee  also  to  perform.  But  he  can- 
not, after  resisting  performance,  and  after  the  property  has 
depreciated  in  value,  compel  specific  performance  by  the 
vendee." 

§  448.  Preparation  a7id  tender  of  deed. — In  England, 
upon  a  sale  in  consideration  of  a  gross  sum,  it  is  incumbent 
on  the  purchaser  to  prepare  the  conveyance,  and  tender  it 
for  execution  to  the  vendor.*     In  this  country,  the  prevail- 


held  that,  upon  default  of  the  purchaser  to  pay  any  of  the  instalments,  an  action 
for  the  purchase  money  could  not  be  maintained  by  the  vendor  without  proving 
that,  before  bringing  the  suit,  he  offered  to  execute  a  conveyance  on  receiving 
payment  in  full.  Beecher  v.  Conradt,  13  N.  Y.,  108.  Crippen  and  Hand,  Js., 
dissejiting. 

'  Freeson  v.  Bissell,  63  N.  Y.,  168.  Where  the  plaintiff  sets  out  in  his  peti- 
tion that  he  "  is  willing  to  pay  if  he  can  get  a  good  title,"  it  is  a  sufficient  tender 
to  support  the  suit,  when  the  land  in  controversy  has  been  sold  by  the  obligor, 
and  he  has  died,  and  the  rights  of  the  plaintiff  and  the  second  vendee  have 
not  been  judicially  settled.  Johnson  v.  Hopkins,  19  Iowa,  49.  But  the  general 
offer  of  a  complainant  to  do  and  perform  whatever  the  court  shall  decree  ought 
to  be  done  by  him,  is  not  enough  to  maintain  a  bill  in  equity  for  specific  per- 
formance when  it  appears  that  before  bringing  the  suit  he  did  not  offer  or  intend 
to  perform  the  contract,  and  that  the  bill  is  filed  after  there  should  have  been 
performance,  and  when  the  condition  of  the  parties  has  materially  changed. 
Ely  V.  McKay,  12  Allen,  323.     See  Christian  v.  Cabell,  22  Gratt.,  82. 

2  Chess's  Appeal,  4  Pa.  St.,  52.  *  Martin  v.  Merritt,  57  Ind.,  34. 

*  Tobey  v.  Foreman,  79  111.,  489. 

^  Dart's  V.  &  P.,  245.  In  Baxter  v.  Lewis,  Forrest,  61,  on  a  bill  filed  by  a 
vendor  of  land  against  the  purchaser  for  a  specific  performance,  the  defendant 
having  been  decreed  to  pay  the  purchase  money,  which  he  neglected  to  do,  he 
was  attached.  A  motion  to  set  aside  the  attachment  on  the  ground  that  as  the 
vendor  had  not  prepared  and  tendered  a  conveyance,  the  defendant  was  not 
bound  to  pay,  w^as  denied,  the  court  holding  that  it  was  the  duty  of  the  defend- 


6 14  NON-PERFORMANCE    OF    PLAINTIFF.  §  448. 

ing  practice  is,  that  the  vendor  shall  prepare  the  deed,  and 
have  it  ready  when  called  for.  This  would  seem  to  be  the 
obvious  meaning  of  the  parties  when  the  seller  covenants 
that  he  will  convey  the  title  to  the  purchaser  ;  and  such  has 
been  expressly  held  to  be  the  rule  in  California,  Iowa, 
Maine,  Massachusetts,  Minnesota,  New  Hampshire,  Penn- 
sylvania, lUinois,  Mississippi,  and  South  Carolina.'  In 
Arkansas,  it  is  the  duty  of  the  purchaser  to  prepare  the 
conveyance  at  his  own  expense,  and  tender  it  to  the  ven- 
dor, according  to  the  English  rule.''  It  is  the  same  in  Ala- 
bama ;  and  in  the  latter  State  it  has  been  held  that  the 
vendor,  when  required,  must  furnish  an  abstract  of  his  title.' 
In  New  York,  the  doctrine  maintained  by  the  earlier  cases 
that  the  vendee,  after  tendering  the  purchase  money  and 
demanding  a  deed,  must,  after  waiting  a  reasonable  time, 
apply  for  the  deed,  is  no  longer  advocated,  and  it  is  now 
held  that  there  need  be  but  one  demand  in  order  to  put  the 
vendor  in  default.  When  the  day  is  fixed  for  the  delivery 
of  the  deed,  and  the  purchase  money  has  been  paid,  the 
duty  is  absolute  on  the  vendor  to  deliver  his  deed  at  the 
time.  He  should  therefore  prepare  the  deed  and  be  ready 
to  deliver  it  when  demanded.  "  One  request  (even  if  a 
request  at  all  were  necessary)  would  be  enough  to  put  the 
vendor  in  default."*    It  has  been  held  in  Maine,  that  where 

ant  to  prepare  and  tender  the  conveyance  and  pay  the  purchase  money.  In 
Knight  V.  Crockford,  i  Esp.,  190,  on  an  objection  that  the  plaintiff,  a  purchaser, 
could  not  recover  on  the  contract  in  question;  because  he  had  not  proved  the 
preparation  and  tender  of  a  deed  to  the  vendor,  Eyre,  C.  ].,  admitted  that  the 
objection  was  according  to  the  rule,  but  that  as  the  vendor  had  deprived  himself 
of  the  power  to  convey  the  property  by  selling  it  to  another,  a  strict  perform- 
ance on  the  part  of  the  plaintiff  was  unnecessary. 

'  Morgan  v.  Stearns,  40  Cal.,  434  ;  Carson  v.  Lucore,  i  Greene  (Iowa),  33  ; 
Powers  v.  Bridges,  2  lb.,  235  ;  Young  v.  Daniels,  2  Iowa,  126  ;  Hill  v.  Hobart, 
16  Me.,  164;  Tinney  V.  Ashley,  15  Pick.,  546;  St.  Paul  Division  v.  Brown,  9 
Minn.,  157  ;  Fairbanks  v.  Dow,  6  N.  H.,  266  ;  Sweitzer  v.  Hammel,  3  Serg.  & 
Rawle,  228;  Buckmaster  V.  Grundy,  i  Scam.,  310;  Standifer  v.  Davis,  13  Sm. 
&  Marsh,  48  ;  Prothro  v.  Smith,  6  Rich.  Eq.,  324.  See  Dana  v.  King,  2  Pick., 
155;  Hunt  v.  Livermore,  5  lb.,  395  ;  Brown  v.  Bellows,  4  lb.,  179;  Green  v. 
Reynolds,  2  Johns,  207  ;  Hudson  v.  Swift,  20  lb.,  27  ;  Parker  v.  Parmele,  lb., 
130;  Northup  v.  Northup,  6  Co  wen,  296;  Slocum  v.  Despard,  8  Wend.,  615; 
Johnson  v.  Wygant,  1 1  lb.,  48. 

-  Byers  v.  Aiken,  5  Pike,  419.  ^  Chapman  v.  Lee,  55  Ala.,  616. 

■*  Carpenter  v.  Brown,  6  Barb.,  147,  per  Gridley,  J.  Formerly,  in  New  York, 
under  a  covenant  to  convey,  the  vendor  was  not  bound  to  prepare  tlie  convey- 


§  449-  WAIVER    OF    RIGHT.  615 

the  purchaser  pays  for  the  land  in  full,  and  the  vendor  gives 
him  a  bond  conditioned  that  the  vendor  shall,  in  a  reason- 
able time  after  request,  make  and  execute  to  the  purchaser 
or  his  assigns  a  conveyance,  a  demand  for  the  deed  will  be 
good  without  at  the  same  time  producing  the  bond.' 

§  449.  Waiver  of  right. — A  party  may  waive  a  con- 
dition, or  treat  the  contract  after  default  as  continuing  in 
force,  in  which  case  he  cannot  insist  on  a  forfeiture.''  Al- 
though it  is  agreed  that,  in  case  of  a  failure  to  pay  at  the 
time  set,  the  purchaser  shall  forfeit  the  contract,  and  sur- 
render the  land,  yet  if,  after  such  default,  the  vendor  claim 
payment  and  permit  the  purchaser  to  improve  the  land,  the 
vendor  will  be  deemed  to  have  waived  the  forfeiture,  and, 
if  he  refuses  to  convey,  he  will  be  compelled  to  pay  for  the 
improvements.^  In  a  suit  for  the  specific  performance  of  a 
contract  for  the  sale  of  real  estate,  it  appeared  that  the  prop- 
erty having  been  bought  by  the  plaintiff  at  auction,  and  ten 
per  cent,  paid  by  him  thereon,  he  tendered  the  agent  of  the 
vendor  a  check  for  the  balance,  which  was  declined,  because 
it  was  not  certified  ;  that  the  plaintiff  then  went  away  to 
get  the  check  certified,  and  in  an  hour  and  a  half  came  back, 
tendered  it  duly  certified,  and  demanded  a  conveyance,  which 
was  refused  on  the  ground  that  the  plaintiff  was  not  ready 
to  perform  at  the  time  stipulated  ;  and  that  the  land  was 

ance  until  the  party  who  was  to  receive  it  was  in  a  situation  rightfully  to  de- 
mand it.  After  such  demand,  the  grantor  was  allowed  a  reasonable  time  to 
draw  and  execute  the  deed,  and  he  was  then  to  have  it  ready  to  deliver  when 
it  was  called  for,  and  he  was  not  in  default  until  a  second  demand  was  made. 
The  purchaser  might,  however,  prepare  the  deed  and  tender  it  for  execution  ; 
and  in  that  case,  only  one  demand  was  necessary.  Fuller  v.  Hubbard,  6  Cowen, 
I  ;  Connelly  v.  Pierce,  7  Wend.,  129 ;  Wells  v.  Smith,  2  Edw.  Ch.,  78. 

'  Hill  v.  Hobart,  supra.  In  a  suit  for  the  specific  performance  of  a  contract 
to  convey  real  estate,  the  only  proof  as  to  the  delivery  of  the  deed  was  the  fol- 
lowing testimony  of  the  plaintiff:  "I  had  in  my  possession  papers  and  instru- 
ments signed  by  the  defendants  in  this  action,  in  reference  to  the  conveyance  by 
the  defendants  of  said  lot  of  land,  described  in  the  petition,  to  the  plaintiff.  I 
had  papers  in  possession  three  different  times,  not  under  my  control,  but  they 
were  in  my  custody  for  a  short  time."  Held  insufficient.  Steel  v.  Fife,  48  Iowa, 
99.  For  proof  of  the  delivery  of  a  deed,  see  Roberts  v.  Svvearingen,  8 
Nebr.,  363. 

*  Ewins  v.  Gordon,  49  N.  H.,  460 ;  Sharp  v.  Trimmer,  24  N.  J.  Eq.,  422  ;  Mor- 
gan v,  Herrick,  21  111.,  481. 

Bellamy  v.  Ragsdale,  14  B.  Mon.,  364. 


6l6  NON-PERFORMANCE    OF    PLAINTIFF.  §  449. 

then  sold  and  conveyed  to  another  person  who  knew  what 
had  transpired.  It  was  held  that,  as  the  tender  was  rejected 
because  the  check  was  not  certified,  and  not  because  it  was 
not  money  or  a  legal  tender,  the  right  to  demand  money 
and  performance  at  the  precise  time  was  waived,  and  that, 
as  the  second  purchaser  took  his  conveyance  with  notice 
of  all  the  circumstances,  he  held  his  title  subject  to  the  equi- 
ties of  the  plaintiff,  and  must  convey  the  property  to  him.' 
Where  the  vendor  acknowledged  the  receipt  of  money,  the 
assignment  of  paper,  and  the  note  of  the  vendee,  as  pay- 
ment, and  agreed  to  execute  a  deed  when  demanded,  the 
collection  of  the  paper  assigned  not  being  made  a  condition 
precedent  to  the  conveyance  of  the  title,  it  was  held  that 
the  contract  would  be  specifically  enforced.'  If  either  party 
to  a  contract  of  sale  fails  or  refuses  to  claim  or  act  under 
the  contract  for  such  a  length  of  time  as  gives  the  impres- 
sion that  he  has  waived  or  abandoned  the  sale  or  purchase, 
and  more  especially,  when  the  circumstances  justify  the  be- 
lief that  his  intention  was  to  perform  the  contract  only  in 
case  it  suited  his  interest,  he  will  forfeit  all  claim  to  equita- 
ble relief."  Although  there  must  be  a  good  excuse,  when 
there  has  been  a  failure  to  comply  with  the  terms  of  a  con- 
tract of  sale,  or  a  court  of  equity  will  not  grant  relief,  yet 
if  the  purchaser  has  announced  his  determination  to  aban- 
don the  contract,  and  the  vendor  has  acquiesced  in  such 
abandonment,  and  made  an  agreement  to  sell  the  land  to  a 
third  person  who  is  put  into  possession,  the  previous  con- 
tract becomes  a  nullity."  Where,  under  a  contract  for  the 
sale  of  real  estate,  the  purchaser  is  entitled  to  possession 
both  as  vendee  and  lessee,  and,  upon  the  expiration  of  the 
lease,  he  refuses  to  complete  the  purchase,  the  vendor,  by 


'  Duffy  V.  O'Donovan,  46  N.  Y.,  223.  See  Laverty  v.  Moore,  33  lb.,  658  ;  Dit- 
to v.  Harding,  73  111.,  117;  Hedenberg  V.  Jones,  lb.,  149;  D'Wolf  v.  Pratt,  42 
111.,  198 ;  Hoyt  V.  Tuxbury,  70  111.,  331  ;  Cunningham  v.  Brown,  44  Wis.,  72. 

'  Snioot  V.  Rea,  19  Md.,  398.  ^  Eastman  v,  Plumcr,  46  N.  H.,  464. 

*  Wood  V.  Perry,  1  Barb.,  114. 


§  450-  DISAFFIRMANCE    OF    CONTRACT.  6 1  7 

accepting  the  rent,  waives  his  right  to  specific  performance 
of  the  contract  of  sale/ 

§  450.  Disaffirmance  of  contract. — Where  a  vendee  posi- 
tively refuses  to  receive  a  deed  at  the  time  and  place  agreed 
upon,  it  is  not  necessary  for  the  vendor  to  execute  and 
tender  one/  The  necessity  of  a  tender  to  the  vendee  is 
superseded  by  a  notice  from  him  to  the  vendor,  of  the 
abandonment  of  the  possession,  and  a  refusal  to  take  the 
property  according  to  the  contract/  And  the  same  is  of 
course  the  case  when  the  notice  comes  from  the  vendor  to 
the  vendee  that  the  former  will  not  fulfil/  A  party,  under 
a  contract  for  the  purchase  of  real  estate,  took  possession 
and  paid  part  of  the  consideration,  but  defeated  an  action  to 
recover  the  balance  of  the  purchase  money,  on  the  ground 
that  the  contract  was  void  by  the  statute  of  frauds.  It  was 
held  that,  as  he  had  disaffirmed  the  contract,  he  was  not  en- 


'  Bryan  v.  Read,  i  Dev.  &  Batt.  Eq.,  78.  If  the  obligor  has  performed  the 
principal  part  of  his  contract,  and  the  obligee  performs  the  residue,  but  not  be- 
cause the  obligor  refused  to  perform  such  residue,  the  latter  will  not  be  deprived 
of  the  benefit  of  the  contract.     Church  v.  Steele,  i  A.  K.  Marsh,  325. 

^  Maxwell  v.  Pettinger,  3  N.  J.  Eq.  (2  Green),  156.  A  party  who  intends  to 
object  to  a  proposed  conveyance,  must  do  so  when  it  is  presented,  or  after  time 
taken  to  consider  it,  or  to  consult  counsel.  He  cannot  be  permitted  to  retain  the 
proposed  deed  without  objection,  or  reservation  of  the  right  to  object,  and  after- 
ward, when  sued  for  a  breach,  set  up  the  objection  for  the  first  time  in  answer 
to  the  action.  Morgan  v.  Stearns,  40  Cal.  434.  An  offer  which  by  its  terms 
limits  the  time  of  acceptance,  is  withdrawn  by  the  expiration  of  the  time  without 
acceptance,  and  an  acceptance  afterward,  will  not  bind  the  party  making  the 
offer.  Potts  V.  Whitehead,  20  N.  J.  Eq.,  55  ;  Kerr  v.  Purdy,  51  N.  Y.,  629,  re- 
versing S.  C,  50  Barb.,  24.  Plaintiff  contracted  to  sell  and  convey  to  defendant 
certain  lots  in  the  city  of  New  York,  and  to  assign  two  certain  leases  of  another 
lot  executed  by  the  city  corporation  on  sale  for  unpaid  taxes.  At  the  time  named 
for  performance,  plaintiff  tendered  a  deed  of  the  lots,  and  offered  to  assign  the 
leases,  but  defendant  refused  to  perform  as  to  the  leasehold  interests,  on  the 
ground  that  plaintiff's  leases  were  invalid.  In  a  suit  to  have  the  contract  vacated, 
in  which  the  defendant  asked  for  a  specific  performance  of  the  contract,  the 
special  term  decreed  specific  performance  as  to  the  lots,  with  an  abatement  from 
the  contract  price  of  the  value  of  the  leasehold  interests.  The  general  term,  on 
appeal,  modified  the  judgment  by  awarding  specific  performance  of  the  entire 
contract  in  case  defendant  consented  to  take  the  assignment  of  the  leases,  which 
he  did.  It  was  held  error;  that  the  general  term  ought  not,  under  the  circum- 
stances, to  have  adjudged  a  specific  performance  as  to  the  leasehold  interests 
without  the  consent  of  plaintiff.     Boyd  v.  Schlesinger,  59  N.  Y.,  301. 

^  Crary  v.  Smith,  2  N.  Y.,  60. 

^  White  v.  Dobson,  17  Gratt.,  262  ;  Brown  v.  Eaton,  21  Minn.,  409  ;  Mattocks 
V.  Young,  66  Me,,  459. 


6l8  NON-PERFORMANCE    OF    PLAINTIFF.  §  450- 

titled  to  a  decree  for  the  specific  performance  of  it.'  Al- 
though, in  general,  a  contract  of  sale  will  not  be  enforced 
if  the  vendor  has  been  in  default  and  the  vendee  will  there- 
by sustain  serious  loss  if  compelled  to  perform,  yet  if  the 
purchaser  knew,  when  he  entered  into  the  contract,  that  the 
title  was  defective,  and  that  it  would  require  considerable 
time  to  remove  the  defect,  or  if  he  ascertains  this  after  his 
purchase,  and  acquiesces  in  the  delay,  or  proceeds,  with 
knowledge  of  the  defect,  to  carry  out  the  contract,  he  can- 
not complain." 


'  Payne  v.  Graves,  5  Leigh,  561, 

-  Pincke  V.  Curteis,  4  Bro.  C.  C,  329  ;  Vail  v.  Nelson,  4  Rand,  478.  Where 
a  complaint  to  recover  the  purchase  money  due  upon  a  written  contract  of  sale, 
alleges  possession  by  the  defendant  of  the  land  sold,  and  a  refusal  to  surrender 
it  to  the  plaintiff,  the  plaintiff  is  entitled  to  recover,  although  a  deed  was  not  ten- 
dered when  the  purchase  money  became  due,  the  defendant's  acts  being  an  ac- 
quiescence in  such  failure.     Emmons  v.  Riger,  23  Ind.,  483. 


CHAPTER   XV. 

ACTS    OF    PLAINTIFF    DISENTITLING    HIM    TO    PERFORMANCE. 

451.  Where  the  contract,  if  enforced,  would  be  capable  of  being  immediately 

dissolved. 

452.  Effect  in  general  of  breaches  of  covenant. 

453.  Wrongful  re-entry  of  vendor. 

454.  Trifling  breaches  disregarded. 

455.  Waiver. 

§  45 1.  Forfeiture  of  right  tinder  contract. — Having  con- 
sidered, in  the  last  chapter,  the  cases  in  which  the  plaintiff 
has  deprived  himself,  by  his  default,  of  all  claim  to  the  in- 
tervention of  a^ourt  of  equity  in  his  behalf,  there  remain 
to  be  considered  his  acts  in  contravention  of  the  contract, 
constituting' a  bar  to  specific  performance.  If  the  contract 
of  the  parties  is  such  that  the  plaintiff  would  be  deprived 
of  the  benefit  of  it  if  it  were  enforced,  it  would  be  an  idle 
ceremony  for  the  court  to  enforce  it.'  The  court  has  often 
refused  to  create  a  legal  relation,  on  the  ground  that,  if 
created,  it  would  be  immediately  dissoluble.  In  a  suit  for 
the  specific  performance  of  an  agreement  for  a  lease,  the 
bill  was  dismissed  with  costs,  because  there  had  been  such 
neglect,  on  the  part  of  the  plaintiff,  both  as  to  insurance 
and  repairs,  as  would,  if  the  lease  had  been  executed,  have 
amounted  to  breaches  of  covenant  on  which  there  would 
have  been  a  ric:ht  to  re-enter  and  avoid  the  lease.'     Where 


^  Lewis  V.  Bond,  18  Beav.,  87. 

'^  Gregory  v.  Wilson,  9  Hare,  683.  In  this  case  the  vice-chancellor  said  :  "  The 
contract  is  to  create  a  legal  relation  between  the  parties,  which,  when  created, 
is  to  be  determinable  by  one  party  on  the  non-fulfilment  by  the  other  of  certain 
obligations.  Possession  is  taken  under  the  contract.  The  party  on  whom  the 
obligations  are  to  rest,  obtains  on  his  part  the  full  benefit  of  the  contract.  Is  a 
court  of  equity  to  hold  that,  until  the  legal  relation  is  created,  the  contract  is  uni- 
lateral, and  that  the  party  who  has  the  benefit  of  the  contract  is  not  to  be  sub- 
ject to  the  consequences  which  are  stipulated  to  attach  upon  the  non-perform- 
ance of  the  obligations  into  which  he  has  agreed  to  enter.?  It  is  true  that  until 
the  legal  relation  is  created,  the  stipulated  remedy  by  re-entry  cannot  be  made 


620  NEGATIVE    ACTS    OF    PLAINTIEF.  §  452. 

a  contract  for  the  renewal  of  a  lease  provided  that  the  de- 
mised premises  should  be  used  "  strictly  as  a  private  dwell- 
ing, and  not  for  any  public  or  objectionable  purpose,"  and 
the  assignee  permitted  them  to  be  occupied  for  a  boarding- 
house,  specific  performance  was  refused,  although  the  lessor 
had  consented  that  the  premises  might  be  used  for  lodging 
in  connection  with  a  girls'  school."  And  although  the  acts 
of  the  plaintiff  may  not  have  been  such  as  to  have  worked 
a  forfeiture  of  his  rights  under  the  contract,  yet  he  who 
seeks  equity  must  do  equity ;  and  the  principle  heretofore 
considered,  that  one  who  asks  the  court  to  enforce  an  agree- 
ment in  his  favor,  must  show  that  he  has  performed,  or  been 
ready  and  willing  to  perform,  his  part  of  the  contract,  fur- 
nishes a  defence  when  it  is  proved  that  he  has  been  guilty  of 
a  breach,'' 

§  452.  Right  of  lessor  to  i7tsiston  covenajits  'in  lease. — A 
tenant  who  has  committed  waste,  treated  land  in  an  unhus- 
bandlike  manner,  or  been  guilty  of  breaches  of  covenant 
for  which  the  lessor  would  have  a  right  of  re-entry,  is  not 
entitled  to  specific  performance  of  a  contract  for  a  lease. 
The  effect  of  omitting  repairs,  as  we  have  seen,  is  the  same  ; 
there  being  no  difference  in  the  consequences  of  a  breach 
of  such  a  covenant,  and  the  breach  of  a  covenant  not  to  as- 
sign without  a  license,  upon  which  it  is  well  settled  that  if 
an  ejectment  is  brought  upon  a  right  of  re-entry  reserved, 
the  lessee  will  not  be  permitted  to  show  that  by  the  assign- 
ment the  lessor  has  sustained  no  damage.  It  is  sufficient 
that  the  lessor  insists  upon  his  covenant ;  and  no  one  has  a 
right  to  put  him  in  a  different  situation.'  The  landlord  of 
premises,  which  he  held  under  a  lease,  agreed  in  writing  to 
under-let  it  at  a  yearly  rent,  with  an  option  to  the  tenant 
to  take  an  under-lease  upon  the  same  terms  for  twenty-one 

available.  But  it  is  for  this  court  to  determine  whether  the  legal  relation  shall 
be  created  or  not ;  and  surely,  the  court  may  well  refuse  to  create  it,  if  it  be  sat- 
isfied that  there  is  such  conduct  as  to  justify  the  immediate  dissolution  of  it  if  it 
were  created." 

'  Gannett  v.  Albree,  103  Mass.,  372.  "^  Walker  v.  Jeffreys,  i  Hare,  341. 

2  Hill  V.  Barclay,  18  Ves.,  56  ;  atite,  §  451. 


§  452.       RIGHT    OF    LESSOR    TO    INSIST    ON    COVENANTS.         621 

years  from  a  day  named.  The  tenant  retained  possession 
under  the  agreement  four  years,  when  he  received  notice 
to  quit.  He  then  apphed  to  his  landlord  for  a  lease  for 
twenty-one  years.  Subsequently,  the  landlord  obtained  pos- 
session of  the  premises  by  a  warrant.  The  tenant  having 
brought  a  suit  for  specific  performance  and  an  injunction, 
the  vice-chancellor,  holding  that  the  defendant  must  be 
taken  to  have  entered  into  the  agreement  in  expectation 
that  the  plaintiff  would  keep  the  property  in  repair,  which 
it  appeared  he  had  not  done,  dismissed  the  bill  with  costs.' 
A  lease  for  twenty-one  years  provided  that  the  lessee  should 
insure  the  premises,  and  keep  them  in  repair,  and  that  the 
landlord  should,  at  the  expiration  of  the  term,  if  all  the 
covenants  had  been  kept,  at  the  request  of  the  lessee  in 
writing,  grant  a  new  lease  for  a  further  period  of  twenty- 
one  years,  and  so  from  time  to  time  upon  the  expiration  of 
every  subsequent  term  of  twenty-one  years.  The  lessee 
built  extensively  on  the  premises,  and,  upon  the  termina- 
tion of  the  first  twenty-one  years,  a  new  lease  was  granted. 
Some  time  previous  to  the  expiration  of  the  second  term 
of  twenty-one  years,  the  lessee  gave  written  notice  that  he 
wanted  a  new  lease.  One  of  the  buildings  on  the  premises 
was  then  greatly  out  of  repair,  and  the  lessee  permitted  it 
to  remain  in  that  condition,  because,  from  correspondence 
with  the  lessor,  he  considered  it  uncertain  whether  a  new 
lease  could  be  obtained,  in  consequence  of  an  alleged  for- 


1  Nunn  V.  Truscott,  3  De  G.  &  Sm.,  304.  "With  regard  to  the  habit  of  the 
court  continuing  an  injunction  where  a  farm  has  been  held  and  treated  in  a 
grossly  unhusbandlike  manner,  and  where  there  would  have  been  a  right  of  re- 
entry in  the  lease,  if  a  lease  had  been  executed,  I  have  said,  and  I^  think  that 
right,  that  I  would  not  continue  an  injunction,  wdth  a  view  to  a  specific  perform- 
ance, which,  if  the  agreement  was  specifically  performed  by  executing  a  lease, 
would  have  been  put  an  end  to  by  the  clause  of  re-entry  that  must  have  been  in- 
troduced in  that  lease."  Lord  Eldon  in  Gourlay  v.  Duke  of  Somerset,  i  V.  &  B., 
68.  "I  will  not  undertake  to  say,  whether  there  have  been  such  cases  as  are 
alluded  to,  much  less  that  there  never  will  be  such  a  case,  where,  even  if  no  right 
of  entry  was  to  be  introduced  under  an  agreement  for  the  lease  of  a  farm,  yet  the 
court,  seeing  a  gross  case  of  waste,  which  will  in  all  cases  be  a  forfeiture  of  the 
place  wasted,  considerable  or  not,  and  gross  breaches  of  covenant  that  could  not 
be  indemnified  by  damages,  would  leave  the  tenant  to  law,  and  grant  no  relief 
here."     Ibid. 


62  2  NEGATIVE    ACTS    OF    PLAINTIFF.  §  452. 

feiture  in  neglecting,  for  a  few  days,  to  keep  up  the  insur- 
ance.     It  was  held  that  the  lessor  would  not  be  restrained 
by  injunction  from  recovering  possession  in  ejectment,  as 
the  lessee  had  not  made  repairs  within  a  reasonable  time.' 
Specific  performance  was  decreed  of  a  contract  for  a  build- 
ing lease,  where  the  intended  lessee  had  erected  on  part  of 
the  land  a  brew  house,  and  the  lessor  insisted  that  such 
erection  would  injure  his  adjoining  property  ;  the  court  not 
regarding  it  as  necessarily  a  nuisance.      But  the  question 
whether,  if  it  had  been  a  nuisance,  it  would  have  consti- 
tuted a  defence,  was  left  open."     The  owner  of  premises 
granted  a  lease  for  twenty-one  years,  with  a  proviso  deter- 
mining the  lease  and  giving  the  lessor  a  right  of  re-entry  on 
non-performance  of  any  of  the  covenants  in  the  lease,  and 
the  lessor  covenanted  that,  at  the  end  of  the  term,  if  it 
should  not  be  sooner  determined  by  the  lessee's  acts  or  de- 
faults, he  would  grant  him  a  lease  for  the  further  term  of 
fourteen  years.     The  rent  was  paid,  and  the  lessee  having 
remained  in  possession  after  the  expiration  of  the  term,  filed 
a  bill  for  specific  performance  of  the  covenant  to  renew  and 
for  an  injunction  to  restrain  an  action  of  ejectment  which 
had  been  brought  against  him  by  the  lessor  for  breaches  of 
covenant  durinsf  the  term  of  which  the  lessor  at  that  time 
had  no  knowledge.     The  motion  for  an  injunction  was  de- 
nied on  the  ground  that  the  lessor  ought  not  to  be  placed 
in  a  worse  situation  after  the  expiration  of  the  term,  than 
he  would  have  been  in  had  he  known  of  the  breach,  and 


1  Job  V.  Banister,  39  Eng.  L.  &  Eq.,  599. 

'  Gorton  v.  Smart,  i  Sim.  &  Stu.,  66.  In  this  case,  counsel  for  the  defendant 
insisted  that  a  brew  house  was  not  a  buildino^  within  the  terms  of  the  agreement; 
2d.  That  the  plaintiff,  having  rejected  the  offer  of  a  lease  on  the  condition  of  his 
adopting  the  means  for  preventing  the  brew  house  from  being  a  nuisance  and  a 
damage  to  the  defendant's  property,  was  not  entitled  to  a  lease  on  any  other 
terms ;  3d.  That  it  was  proved  that  the  brew  house,  as  then  used,  was  an  injury 
to  the  property  of  the  defendant.  The  vice-chancellor,  in  decreeing  specific  per- 
formance, remarked  that  there  was  no  covenant  in  the  agreement  to  restrain  the 
building  of  a  brew  house,  that  a  brew  house  was  not  necessarily  a  nuisance,  and 
that  if  it  was  so  used  as  to  become  a  nuisance,  the  law  was  open  to  the  defend- 
ant. See  Williams  v.  Cheney,  3  Yes.,  59 ;  Wingfield  v.  Crenshaw,  4  Hen.  & 
Munf.,  474. 


§  453'     OPEN  AND  WRONGFUL  VIOLATION  OF  CONTRACT.       62 


O 


availed  himself  of  it  before  the  term  expired.'  Where  there 
was  a  conflict  of  evidence  as  to  whether  there  had  been  a 
breach  of  the  covenants  which  under  the  agreement  were 
to  be  contained  in  the  lease,  specific  performance  was  de- 
creed on  the  ground  of  part  performance  ;  but  the  court 
enabled  the  plaintiff  to  try  the  question  of  breach  of  cove- 
nant, by  directing  that  the  lease  should  be  dated  previous  to 
the  alleged  breach,  and  requiring  him  to  admit,  in  an  action, 
that  the  lease  was  executed  on  the  day  of  its  date." 

§453.  Open  and  zvrongful  violation  of  contract.  —  A 
grantor,  who  has  made  an  unlawful  and  fraudulent  re-entry, 
will  not  be  entitled  to  specific  performance."  Property  was 
sold  upon  the  condition  that  the  vendee  should  be  put  into 
immediate  possession.  Disputes  having  afterward  arisen 
concerning  the  title,  the  vendors  tendered  the  purchaser  his 
deposit,  demanded  a  return  of  the  possession,  drove  the 
purchaser's  stock  off  of  the  land,  and  notified  the  tenants 
not  to  pay  their  rent  to  him.  It  was  held  that  this  conduct 
operated  as  a  rescission  of  the  contract,  and  consequently 
was  a  bar  to  a  suit  by  the  vendors  for  specific  perform- 
ance." 


1  Thompson  v.  Guyon,  5  Sim.,  65.     See  Trant  v.  Dwyer,  2  Bligh  N.  S.,  il. 

2  Price  V.  Coombs,  i  De  G.  &  J.,  34.        ^  Marble  Co.  v.  Ripley,  10  Wall,  339. 
*Knatchbull  v.  Grueber,  i  Mad.,  153  ;  S.  C,  3   Men,  124.     In  this  case.  Lord 

Eldon  said  :  "Now  the  plaintiffs  had  a  right  to  insist  on  the  performance  of  the 
contract,  what  right  could  they  have  to  turn  the  defendant  out  of  possession 
which  was  taken  under  that  very  contract  ?  The  defendant  had  a  right  to  re- 
tain possession  under  the  contract  till  a  conveyance  should  be  executed,  provided 
the  difficulty  about  the  title  could  be  set  right,  which  was  still  a  point  in  ques- 
tion. But  the  plaintiffs,  by  this  act,  destroy  the  contract,  and  how  can  they 
now  pretend  to  have  reserved  a  right  to  its  performance  when,  by  their  own  act, 
it  has  been  rendered  incapable  of  being  performed  ?  Now,  if  the  case  rested 
here,  the  question  would  be  simply  this :  whether  the  vendors  can  insist  that 
the  purchaser  shall  specifically  execute  the  contract,  when,  if  he  were  to  specif- 
ically execute  the  contract,  it  is  rendered  impossible  for  him  to  have  the  full  benefit 
intended  him  by  the  contract,  and  that,  through  the  act  of  the  vendors  them- 
selves. Their  difficulty  in  this  part  of  the  case  is  this  :  It  was  incumbent  on 
them,  if  they  meant  to  have  the  contract  carried  into  execution  upon  the  prin- 
ciple of  compensation  adopted  in  this  court  in  the  case  of  a  defective  title  as  to 
an  immaterial  part  of  the  purchase,  to  have  left  the  property  in  the  enjoyment 
of  the  purchaser,  so  that  he  should  not  be  deprived  of  any  part  of  the  benefit 
intended  him  by  that  contract.  And  I  cannot  see  how  it  wouid  be  possible  for 
the  vendors,  if  nothing  more  had  passed  subsequently,  to  say  the  title  shall  be 
good  as  far  as  we  choose,  and  bad  as  far  as  we  choose  ;  you  sfiall  not  have  the 


624  NEGATIVE    ACTS    OF    PLAINTIFF.  §§  454,  455. 

§  454.  When  breach  of  covenant  excnscd. — Although  a 
contracting  party  may  have  committed  small  breaches,  yet 
when  the  other  party  might  have  remedied  them,  and  if 
specific  performance  were  refused  the  plaintiff  would  be 
without  any  adequate  redress,  the  court  will  grant  the  relief 
without  costs  to  the  plaintiff.'  So,  if  the  non-performance 
of  the  plaintiff  was  owing  to  unexpected  events  beyond 
his  control,  it  may  not  constitute  a  defence.  Thus,  where 
a  lease  of  mines  contained  a  covenant  for  renewal,  and  the 
lessee  covenanted  to  work  the  mines,  and  in  a  suit  by  the 
lessee  for  specific  performance  of  the  covenant  to  renew,  it 
appeared  that  the  lessee  had  not  worked  the  mines  in  con- 
sequence of  their  having  been  flooded,  the  court,  though  it 
did  not  decide  the  point,  was  inclined  to  think  that  this 
would  be  no  bar  to  relief."  Although  breaches  of  cove- 
nant which  are  merely  nominal  will  not  bar  specific  per- 
formance,' yet  the  breach  must  be  so  trivial  as  that  the  court 
would  relieve  against  a  forfeiture  at  law ;  the  fact  that  the 
matter  rests  in  contract,  not  inducing  equity  to  relieve 
more  readily  than  it  would  after  the  legal  relation  had  been 
actually  created.* 

§  455.  Waiver  of  right  to  object. — A  mere  waiver  in 
law  of  the  breach  of  a  contract  for  a  lease,  may  not  de- 
prive the  lessor  of  the  right  to  avail  himself  of  the  breach 
as  a  defence  to  a  suit  by  the  lessee  for  specific  performance. 
For  the  breach  may  personally  disqualify  the  lessee,  and 
lead  the  court  to  consider  whether  the  lessor  ought  to  be 
put  in  the  power  of  such  a  tenant."  Where  the  acts  of  the 
plaintiff  are  relied  on  as  a  forfeiture,  it  must  be  shown  to 
the  satisfaction  of  the  court  that  there  has  been  a  forfeiture 


benefit  of  the  original  contract,  but  you  shall  be  bound  to  take  the  estate  with 
a  compensation  for  so  much  of  it  to  which  we  are  unable  to  make  a  title ;  and 
to  say  this,  after  they  have,  by  their  own  act,  placed  him  in  a  situation  different 
from  that  in  which  he  was  entitled  to  stand,  by  the  terms  of  that  very  con- 
tract." 

'  Holmes  v.  Eastern  Counties  R.R.  Co.,  3  Jur.  N.  S.,  737. 

''Walker  v.  Jeffreys,  i  Hare,  341.     ^  Ibid.;  Pain  v.  Coombs,  3  Sm.  &  Gif.,  449. 

*  Gregory  v. 'Wilson,  9  Hare,  683.  ^  Boardman  v.  Mostyn,  6  Yes.,  467. 


§  455*  WAIVER    OF    RIGHT    TO    OBJECT.  625 

on  which  an  ejectment  could  be  maintained,  before  it  will 
refuse  its  aid  ; '  and  if  a  landlord  has  found  no  fault  with 
his  tenant,  but  has  suffered  him  to  act  on  the  faith  of  the 
contract,  he  will  not  be  permitted,  excepting  for  very 
strong  reasons,  to  raise  such  objections  for  the  first  time 
when  the  tenant  seeks  to  enforce  the  contract' 

'  Gregory  v.  Wilson,  supra. 

2  Mundy  v.  Joliffe,  5  My.  &  Cr.,  167,  reversing  9  Sim.,  413  ;  S.  C,  9  L.  J.  N. 
S.,  95.  In  this  case,  Lord  Cottenham  said:  "  The  defendant  has  endeavored  to 
set  up,  as  a  defence,  acts  of  the  tenant  which  would  have  been  breaches  of  the 
covenant  if  a  lease  had  been  executed.  In  this  I  think  he  has  wholly  failed. 
For  instance,  he  charges  the  tenant  with  having  grubbed  up  a  hedge,  and  it  is 
proved  to  have  been  done  with  the  approbation  of  his  own  steward.  This 
ground  of  defence  assumes  the  existence  of  the  agreement ;  and  if,  upon  that 
supposition,  the  landlord  never  complained  of  the  conduct  of  the  tenant,  but 
permitted  him  to  act  upon  the  faith  of  the  contract,  it  would  require  a  strong 
case  to  enable  the  landlord  to  raise  such  objections  for  the  first  time  when  the 
tenant  claimed  the  benefit  of  it,"  A  decree  for  specific  performance  was  refused 
in  the  court  below,  on  the  ground  that  the  agreement  proved  varied  from  that 
alleged  in  the  bill. 


40 


CHAPTER  XVI. 


LAPSE    OF    TIME. 

456.  How  in  general  regarded. 

457.  Division  of  subject. 

458.  Whether  or  not  time  is  essential,  how  determined. 

459.  Importance  of  time  of  performance  how  proved. 

460.  Presumption  as  to  time. 

461.  Effect  of  stipulation  as  to  time. 

462.  Evidence  as  to  intention. 

463.  Agreement  for  possession  how  construed. 

464.  Date  from  which  time  begins  to  run. 

465.  Designation  by  party  of  time  within  which  there  must  be  performance. 

466.  Where  stipulation  is  in  the  nature  of  a  penalty. 

467.  Non-payment  of  money  at  time  agreed. 

468.  Possession  and  improvements  under  contract  how  regarded. 

469.  What  deemed  a  stale  equity. 

470.  Change  of  property  in  value. 

471.  Party  must  show  excuse  for  delay. 

472.  Delay  pending  a  negotiation. 

473.  Abandonment  of  contract  presumed  from  non-fulfilment. 

474.  Laches  of  vendor. 

475.  Laches  of  vendee. 

476.  Right  of  vendor  to  sell  the  property  to  a  third  person. 

477.  Delay  in  bringing  suit. 

478.  Acquiescence  by  party  in  delay. 

479.  Indulgence  by  vendor. 

480.  Recognition  of  contract. 

481.  Extension  of  time  for  performance. 

482.  Conduct  of  party  waiving  delay. 

483.  Silence  of  party  constituting  a  waiver. 

§  456.  Importance  attached  to  it. — It  may  constitute  a 
defence  that  the  plaintiff  has  forfeited  his  rights  under  the 
contract  by  the  non-performance  of  it  at  the  time  agreed, 
or  by  permitting  a  long  interval  to  elapse  after  the  agree- 
ment was  made  before  bringing  his  suit.'     Default  by  the 

'  It  is  well  settled  that  the  delay  of  either  party  in  performing  his  part  of  the 
agreement,  or  in  commencing  or  prosecuting  his  suit,  may  deprive  him  of  the 
aid  of  the  court  in  enforcing  the  contract.  Mackreth  v.  Marlar,  i  Cox,  259, 
tried  before  Lord  Kenyon,  was  one  of  the  earliest  cases  on  this  point.  Where 
the  vendor  did  not  deliver  an  abstract  previous  to  the  time  fixed  for  completion, 
nor  until  after  an  action  for  the  deposit,  and  the  purchaser  had  demanded  a  re- 
turn of  his  deposit  at  the  date  for  completion,  it  was  held  that  there  was  proof 
of  an  abandonment  of  the  contract  by  the  vendor.  Lloyd  v.  Collett,  4  Bro.  C. 
C,  469,  n.    S.  P.,  Harrington  v.  Wheeler,  4  Ves.,  686.    Approved  in  Fordyce  v. 


§  45'5-         IMPORTANCE  ATTACHED  TO  IT.  62/ 

party  seeking  specific  performance,  in  one  or  other  of  these 
respects,  is  common,  and  has  given  rise  to  much  discussion 
and  to  numerous  decisions.  Courts  of  equity  formerly 
paid  but  little  attention  to  the  mere  time  at  which  the 
stipulations  of  a  contract  were  to  be  performed  and  carried 
the  doctrine  of  relief,  notwithstanding  a  want  of  punctual- 
ity, to  an  extravagant  length.'  It  has  been  said  that 
"  equity  went  beyond  the  true  limits  to  which  every  juris- 
diction should  be  confined,  as  it  amounted  to  a  substitu- 
tion, pro  tanto,  of  what  the  parties  had  not  contracted  for. 
But  the  tendency  of  the  modern  decisions  is  to  bring  the 
doctrine  within  such  moderate  bounds  as  seem  clearly  in- 
dicated by  the  principles  of  equity,  and  by  a  reasonable  re- 
gard to  the  common  accidents,  mistakes,  infirmities,  and 
inequalities  belonging  to  all  human  transactions.'"  At  law 
it  is  incumbent  on  the  plaintiff  to  show  performance  on 
his  part  within  a  reasonable  time,  or,  if  the  time  be  fixed, 
within  such  time.'  But  equity,  distinguishing  between 
terms  of  the  contract  which  are  matters  of  form,  and  a 
breach  of  which  it  would  be  inequitable  in  either  party  to 
insist  on  as  a  bar,  and  such  as  are  of  the  substance  of  the 
agreement  and  applying  to  contracts  the  principles  which 

Ford,  4  Bro.  C.  C,  494,  by  Lord  Alvanley,  and  in  Lechmere  v.  Brazier,  2  J.  & 
W.,  287,  by  Lord  Eldon.  And  see  Coster  v.  Turner,  i  R.  &  M..  311  ;  Cubitt  v. 
Blake,  19  Beav.,  454.  "A  party  cannot  call  upon  a  court  of  equity  for  specific 
performance,  unless  he  has  shown  himself  ready,  desirous,  prompt,  and  eager." 
Lord  Alvanley  in  Mihvard  v.  Earl  of  Thanet,  5  Ves.,  720,  n.  "  Specific  perform- 
ance is  relief  which  this  court  will  not  give,  unless  in  cases  where  the  parties 
seeking  it  come  as  promptly  as  the  nature  of  the  case  will  permit."  Lord  Cran- 
worth  in  Eads  v.  Williams,  4  De  G.  M.  &  G.,  691. 

1  Gibson  v.  Patterson,  i  Atk.,  12.  See  Lloyd  v.  Collett,  supra,  n.  In  Greg- 
son  V.  Riddle,  cited  7  Ves.,  268,  Lord  Thurlow  is  reported  to  have  said  that  no 
language  of  the  agreement  could  make  time  of  the  original  essence  of  the  con- 
tract. Contra,  per  Lord  Kenyon,  in  Seton  v.  Slade,  7  Ves.,  270.  But  now,  an 
express  agreement  that  time  shall  be  of  the  essence  is  as  valid  and  binding  in 
equity  as  at  law.  Hudson  v.  Bartram,  3  Mad.,  440 ;  Lloyd  v.  Rippingdale,  cited 
in  I  Y.  &  C.'Ex.,  410.  And  see  Honeyman  v.  Marryatt,  21  Beav.,  14,  24;  Bayn- 
ham  V.  Guy's  Hospital,  3  Ves.,  295. 

^2  Story's  Eq.  Juris.,  Sec.  780;  Drewe  v.  Hanson,  6  Ves.,  678  ;  Halsey  v. 
Grant,  13  lb.,  76;  Bowyer  v.  Bright,  13  Price,  702;  Linton  v.  Potts,  5  Blackf., 
396 ;  Barnard  v.  Lee,  97  Mass.,  92. 

*  Berry  v.  Young,  2  Esp.,  640,  n. ;  Wilde  v.  Fort,  4  Taunt.,  334;  Stowell  v. 
Robinson,  3  Bing.,  N.  C.,  928;  Alexander  v.  Godwin,  i  lb.,  671  ;  McCulloch  v. 
Davison,  i  Carter,  Ind.,  413;  O'Kane  v.  Kiser,  25  Ind..  168. 


628  LAPSE    OF    TIME.  §  456. 

have  governed  its  Interference  in  relation  to  mortgages, 
holds  time  to  ho.,  prima  facie,  non-essential.'  Accordingly 
it  may,  and  cases  frequently  occur  in  which  it  will,  enforce 
a  contract  after  the  time  for  its  performance  has  been  per- 
mitted to  elapse  by  the  party  asking  for  the  interposition 
of  the  court."  The  time  within  which  suits  may  be  com- 
menced for  the  specific  performance  of  contracts  has  not 
been  extended  by  implication  by  the  statutes  prescribing  a 
time  within  which  an  action  at  law  must  be  brought.'  The 
question  still  remains,  and  must  be  decided  in  each  suit,  al- 
though brought  within  the  statutory  limit  as  to  time, 
whether,  under  the  peculiar  circumstances,  equity  and  good 
conscience  require  that  the  contract  shall  be  specifically  per- 
formed, or  whether  the  party  should  be  left  to  his  remedy 
at  law.'  It  has  been  held  that  in  cases  of  concurrent  juris- 
diction equity  will  not  assist  where  the  remedy  at  law  has 
been  barred  by  the  statute.'  Of  course,  unless  some  time 
has  been  designated,  the  bill  cannot  be  maintained.  As  it 
is  a  well-settled  principle  that  a  court  of  equity  will  not  en- 
force a  contract  of  which  a  material  part  remains  to  be  set- 
tled by  negotiation  between  the  parties,  where  a  party 
offered  in  writing  to  convey  land,  within  a  time  named,  for 
a  certain  sum,  of  which  part  was  to  be  paid  at  the  execu- 
tion of  the  conveyance,  and  a  mortgage  given  with  interest 
at  six  per  cent,  to  secure  the  balance,  and  no  time  was  spec- 
ified when  the  mortgage  was  to  be  paid,  it  was  held  that 
specific  performance  could  not  have  been  decreed  if  the 
offer  had  been  accepted." 

'  Seton  V.  Slade,  7  Ves.,  273 ;  Parkin  v.  Thorold,  16  Beav.,  59 ;  S.  C,  2  Sim. 
N.  S.,  I. 

"^  See  Radcliffe  v.  Warrington,  12  Ves.,  326;  Pincke  v.  Curteis,  \  Bro.  C.  C, 
329. 

*  Hall  V.  Russell,  3  Sawyer,  506.  ■*  Peters  v.  Delaplaine,  49  N.  Y.,  362. 

,'Blanchard  v.  Williamson,  70  111.,  647.  The  provisions  of  the  New  York  code 
"requiring  a  written  acknowledgment  to  take  a  case  out  of  the  statute  of  limita- 
tions, has  effectually  destroyed  the  old  doctrine  on  which  courts  of  equity  re- 
lieved vendees  from  forfeitures  incurred  in  consequence  of  their  failure  to  perform 
executory  contracts  for  the  sale  of  lands.  That  doctrine  rested  on  the  principle 
that  time  was  not  of  the  essence  of  the  contract.  But  now  the  statute  has  in- 
terposed an  absolute  bar  after  the  lapse  often  years."  Gilbert,  J.,  in  McCotter 
V.  Lawrence,  4  Hun.,  107  ;  6  Thomp.  &  Cook,  392. 

•  Potts  V.  Whitehead,  20  N.  J.  Eq.,  55. 


§§457'  45^-      MATERIALITY  OF  TIME  HOW  DETERMINED.       629 

§  457.  Heads  of  subject. — In  treating  the  subject  under 
consideration,  it  will  be  convenient  to  regard  it  from  the 
following  points  of  view,  which  will  occupy  the  remainder 
of  this  chapter,  ist.  Where  time  is  of  the  essence  of  the 
contract ;  2d.  Where  time  is  not  of  the  essence  of  the  con- 
tract ;  3d.  How  delay  in  fulfilling  the  contract  is  in  general 
regarded  ;  4th.  Laches  or  delay  tending  to  show  that  the 
contract  was  abandoned  ;  5th.   Waiver. 

§  458.  Matei'iality  of  time  Jiow  determined. — The  phrase, 
''  of  the  essence,"  does  not  have  reference  to  the  rise  in  the 
value  of  land,  or  to  the  fact  that  the  value  is  subject  to 
fluctuations,  but  depends  upon  the  intention  of  the  parties. 
An  agreement  to  give  a  deed  on  the  payment  of  the  first 
instalment,  and  that  a  mortgage  shall  be  returned,  is  a  strong 
circumstance  to  show  that  time  was  not  considered  of  the 
essence,  since  a  foreclosure  and  sale  must  be  productive  of 
delay,  and  there  is  to  be  added  to  this,  the  time  given  by 
statute  in  which  to  redeem  after  sale.  And  the  death  and 
intestacy  of  the  ancestor,  and  infancy  of  the  heir  at  law,  will 
go  far  to  excuse  a  strict  performance  of  the  contract.'  On 
the  other  hand,  if  a  person  should  give  his  note  to  another, 
payable  in  one  year,  bearing  interest  much  below  the  cur- 
rent rate,  in  consideration  of  a  covenant  from  the  other,  to 
convey  to  the  maker  certain  land  on  the  payment  of  the 
note,  the  low  rate  of  interest  would  raise  the  presumption 
that  the  note  was  to  be  paid  at  maturity.'     Although  if  a 

^  Morgan  v.  Herrick,  21  III,  481.  In  contracts  for  the  sale  of  real  estate,  time 
is  not  usually  of  the  essence  of  the  contract,  the  intention  being  that  the  purchase 
shall  be  completed  within  a  time  reasonable  under  the  circumstances  of  the  case. 
Chadwell  v.  Winston,  3  Tenn.  Ch.,  no;  Abbott  v,  L'Hommedieu,  10  W.  Va., 
677  ;  Rader  v.  Neal,  13  lb.,  374. 

-  Brown  v.  Covilland,  6  Cal.,  566.  If,  in  a  suit  for  the  specific  performance  of 
the  contract  of  sale,  it  appears  that  the  instalments  have  become  due  according 
to  the  agreement,  the  court  has  no  authority  to  extend  the  time  of  payment  ; 
the  contract  not  being  capable  of  enforcement  otherwise  than  as  the  parties 
themselves  have  made  it.  Lombard  v.  Chicago  Sinai  Congregation,  75  111.,  271. 
Equity  will  not  decree  specific  performance  of  a  contract  where  time  is  essential 
and  the  time  specified  has  elapsed,  unless  the  party  seeking  relief  can  show  that 
he  was  diligent  in  trying  to  perform  his  part  ;  nor  unless  the  other  party  can  be 
put  in  as  good  a  situation  as  if  the  agreement  had  been  complied  with  at  the 
time  specified.     Rector  v.  Price,  i  Mo.,  373. 


630  LAPSE    OF    TIME.  §  459. 

creditor  has  his  debt  secured  by  bond  and  mortgage,  or  if 
a  vendor  retains  the  legal  title  to  secure  the  purchase  money, 
it  is  considered  in  equity  that  time  is  immaterial,  and  the 
parties  are  supposed  to  be  willing  to  let  the  debt  stand  upon 
the  security,  unless  judgment  is  taken  on  the  bond,  the 
mortgage  is  foreclosed,  or  a  specific  performance  is  required;' 
yet  the  principle  does  not  apply  to  a  case  where  A.  being 
about  to  purchase  land,  agrees  to  let  B.  have  one-third  of  it 
provided  he  will  aid  in  raising  the  funds  to  pay  the  purchase 
money.  In  such  a  case,  if  the  time  in  which  the  aid  is  to 
be  rendered  be  expressly  agreed  on,  and  the  party  neglects 
to  advance  his  portion  of  the  purchase  money,  and  thereby 
puts  the  burthen  of  raising  all  the  funds  upon  the  other,  he 
cannot  in  conscience  insist  upon  a  right  to  stand  off  until 
the  struggle  is  over,  and,  at  any  time  when  he  sees  fit,  come 
forward  and  claim  a  share.  Time,  in  such  cases,  is  of  the 
essence  of  the  contract,  and  assistance  in  raising  the  pur- 
chase money  is  presumed  to  have  been  a  principal  induce- 
ment for  allowing  a  participation  in  the  bargain.'' 

§  459.  Proof  of  intention. — Equity  treats  time  as  origi- 
nally of  the  essence  of  the  contract  when  the  agreement 
shows  that  the  parties  intended  that  it  should  be  so  re- 
garded, and  that  it  was  not  inserted  as  a  merely  formal  part 
of  the  contract.'  It  may  be  proved  by  parol,  that,  at  the 
making  of  the  contract,  time  was  considered  as  of  the 
essence."  In  this  country,  the  more  frequent  fluctuations  in 
the  value  of  land,  and  in  the  business  circumstances  of  men, 
than  in  England,  are  important  considerations  in  each  case, 
especially  when  the  vendor  sues  to  compel  the  specific  per- 
formance of  a  contract  for  the  purchase  of  land  to  which  he 
is  unable  to  give  a  good  title  at  the  time  of  bringing  his 

'  Where  a  vendee  took  possession  of  land  under  a  contract  conditioned  that 
the  vendor  should  convey  on  a  certain  day,  and  that,  at  the  same  time,  the  ven- 
dee should  secure  the  purchase  money,  but  no  conveyance  was  executed,  and 
the  purchase  money  was  not  paid  for  fifteen  years,  it  was  held  that  the  lapse  of 
time  was  no  objection  to  a  suit  for  specific  performance  at  the  suit  of  the  vendee. 
Waters  v.  Travis,  9  Johns,  450. 

-  Willis  V.  Forney,  Busbee  Eq.,  256.      ^Hipweli  v.  Knight,  i  Y.  &C.  Ex.,401. 

*  King  V.  Ruckman,  20  N.  J.  Eq.,  316. 


§  4^0.  WHEN    TIME    PRESUMED    MATERIAL.  63 1 

suit/  The  intention  of  the  parties  that  time  shall  be  deemed 
essential,  if  not  expressed,  may  be  implied  from  the  nature 
of  the  agreement  as  to  any  one  of  the  terms  of  the  contract. 
But  when  this  is  claimed,  it  must  be  done  without  delay." 
A  party  in  default  is  not  entitled  to  specific  performance 
though  time  was  not  made  essential  when  the  contract  was 
entered  into,  if  the  parties  by  their  conduct  afterward  made 
it  so.' 

§  460.  When  time  presumed  material. — It  may  be  im- 
plied, from  the  general  nature  of  the  subject  matter  of  the 
contract,  that  time  is  essential.  Although  in  the  ordinary 
case  of  the  purchase  of  land  and  fixing  a  particular  day  for 
the  completion  of  the  title,  the  court  considers  that  the 
principal  object  being  only  the  sale  of  the  land  for  a  given 
sum,  the  particular  day  named  is  merely  formal,  and  the 
stipulation  means  that  the  purchase  shall  be  completed 
within  a  reasonable  time,  regard  being  had  to  all  the  cir- 
cumstances of  the  case  and  the  nature  of  the  title  to  be 
made,  yet  if  the  property  sold  is  of  greater  or  less  value  by 
the  efflux  of  time,  it  is  manifest  that  time  is  of  the  essence 
of  the  contract,  and  the  stipulations  as  to  time  must  then 
be  literally  complied  with  in  equity  as  well  as  at  law.'  As 
examples,  may  be  mentioned  the  cases  of  the  sale  of  a  re- 
version, or  of  a  house  for  residence,  or  where  the  sale  is  to 
be  followed  by  a  change  of  residence  of  the  vendor  or  pur- 
chaser at  a  given  day."  Where  a  party  contracted  for  the 
purchase  of  a  leasehold  house  for  his  residence,  and  it  was 

'  Hepburn  v.  Aukl,  5  Cranch,  262;  Richmond  v.  Gray,  3  Allen,  25  ;  Barnard 
V.  Lee,  97  Mass.,  92. 

"^  Monro  v.  Taylor,  8  Hare,  51,  62.  ^  Jackson  v.  Ligon,  3  Leigh,  161. 

*  Rogers  v.  Saunders,  16  Me.,  92;  Hull  v.  Noble,  40  lb.,  459;  Prentice  v. 
Betteley,  2  Lowell,  289. 

^  Hipwell  V.  Knight,  supra  ;  Newman  v.  Rogers,  4  Bro.  C.  C,  391  ;  Merritt  v. 
Brown,  19  N.  J.  Eq.,  286;  Gale  v.  Archer,  42  Barb.,  320;  Edwards  v.  Atkin- 
son, 14  Texas,  373.  Time  is  essential  whenever,  from  change  of  circumstances, 
a  performance,  which  would  alone  answer  the  ends  of  justice  between  the  par- 
ties, has  become  impossible.  Pratt  v.  Low,  9  Cranch,  466  ;  Longworth  v.  Tay- 
lor, I  McLean,  395  ;  Garnett  v.  Macon,  6  Call,  308  ;  or  where  the  other  party 
may  be  seriously  injured  or  exposed  to  injury  by  non-performance  within  the 
time.     Doar  v.  Gibbes,  Bailey  Eq.,  371. 


632  LAPSE    OF    TIME.  §  460. 

agreed  that  he  should  have  possession  by  a  certain  day, 
and  the  vendor,  although  he  tendered  possession,  failed 
to  show  a  good  title  by  the  day  named,  it  was  held, 
reversing  the  decision  of  the  vice-chancellor,  that  the 
•agreement  as  to  time  was  of  the  essence  of  the  contract, 
and  a  bill  for  specific  performance  was  dismissed/  So, 
when  the  property  is  sold  for  immediate  use  which  does 
not  admit  of  delay,  although  the  purpose  for  which  it  is 
desired  is  not  mentioned  in  the  contract,   if  the   vendor 

'  Tilley  v.  Thomas,  L.  R.  3,  Ch.  61,  69.  In  this  case  Lord  Cairns,  L.  J.,  said  : 
"Of  the  three  grounds  of  interference  mentioned  by  Lord  Justice  Turner,  ex- 
press stipulations  require  no  comment.  The  nature  of  the  property  is  illustrated 
by  the  case  of  reversions,  mines,  or  trades.  The  surrounding  circumstances 
must  depend  on  the  facts  of  each  particular  case.  In  this  case  the  property  sold 
was  a  residential  leasehold  house,  not  apparently  let  or  producing  rent  at  the  time 
of  sale,  and  intended  by  the  defendant  to  be  used  as  his  own  residence.  Looking 
at  the  admitted  facts  thus  stated,  I  can  have  no  hesitation  in  saying  that,  in  my 
opinion,  it  was  essential  that  the  defendant  should  have,  by  the  time  stipulated, 
possession  of  the  house  for  repairs  and  improvements  with  a  view  to  his  own 
immediate  residence ;  a  possession,  therefore,  which  could  not  be  disturbed ;  a 
possession,  that  is  to  say,  with  a  title,  and  that,  to  enforce  against  the  purchaser 
performance  after  a  breach  of  it  by  the  vendor  in  this  respect,  would  be  inequi- 
table." Sir  John  Rolt,  L.  J.,  said:  "The  first  question  in  this  case  is,  What  is 
the  true  legal  construction  of  the  words  in  the  contract,  '  Possession  to  be  given 
on  the  14th  of  January  next '  .'*  Do  they  mean  possession  siinpliciter,  with  or 
without  a  title,  or  are  they  to  be  construed  as  meaning  possession  with  complete 
title  previously  shown  }  I  am  of  opinion,  excluding  everything  that  passed  ver- 
bally between  the  parties  or  their  agents  at  the  time  of  the  contract,  that  the 
possession  referred  to  must  be  construed,  even  at  law,  to  mean  possession  with 
a  complete  title  previously  shown.  As  a  general  rule,  I  think  the  word  posses- 
sion, in  such  a  contract,  should  be  so  construed.  A  conveyance  previously  exe- 
cuted is  probably  not  necessary.  But  it  is  not  material  to  inquire  into  this  ;  for 
here  it  is  admitted  that  a  good  title  was  not  previously  shown.  There  may  be 
cases  in  which,  from  the  nature  of  the  property,  or  from  the  context,  the  word 
may  admit  of  a  different  meaning;  and  that  appears  to  have  been  Lord  Eldon's 
ultimate  decision  of  the  meaning  of  the  expression  as  used  in  the  agreement  in 
Boehm  v.  Wood,  i  Jac.  &  W.,  419.  But  general  possession  without  a  title 
would,  or  might  be,  the  source  of  great  embarrassment  to  a  purchaser,  and 
could  scarcely  have  been  in  contemplation  at  the  time  of  the  contract ;  and  it 
ought  not,  therefore,  to  be  generally  accepted  as  the  true  meaning  of  the  expres- 
sion standing  alone Now,  as  a  matter  of  construction  merely,  I  appre- 
hend the  words  must  have  the  same  meaning  in  equity  as  at  law.  The  rights 
and  remedies  consequent  on  that  construction  may  be  different  in  the  two  juris- 
dictions ;  but  the  grammatical  meaning  of  the  expression  is  the  same  in  each.  And 
if  this  be  so,  time  is  a  part  of  the  contract ;  and  if  there  is  a  failure  to  perform 
within  the  time,  the  contract  is  broken  in  equity  no  less  than  at  law.  But  in 
equity  there  may  be  circumstances  which  will  induce  the  court  to  give  relief 
against  the  breach,  and,  sometimes,  even  though  occasioned  by  the  neglect  of 
the  suitor  asking  relief.  Not  so  at  law.  The  legal  consequences  of  the  breach 
must  there  be  allowed  strictly  to  follow.  The  defendant  is  entitled  to  say  that 
the  contract  is  at  an  end  ;  and  it  is  in  this  sense,  1  apprehend,  that  in  such  cases 
it  is  said  that  time  is  of  the  essence  of  the  contract  at  law,  though  not  necessa- 
rily so  in  equity." 


§  4^0.  WHEN    TIME    PRESUMED    MATERIAL.  6^^ 

knew  the  purpose.'  So  of  the  sale  and  purchase  of  stock 
which  is  subject  to  fluctuation  in  market  value ; '  and  of 
contracts  for  annuities  on  lives."  Time  may  be  essential, 
where  the  object  of  the  contract  is  a  commercial  venture, 
whether  land  be  purchased  for  such  purposes,  or  other 
property.*  It  was  held  to  be  so,  where  the  land  was  bought 
for  the  erection  of  mills.'  Where  the  contract  concerned 
the  supply  of  coal  which  fluctuated  in  market  price  from 
day  to  day,  and  eleven  months  were  allowed  to  pass  before 
bringing  the  suit,  the  court,  on  account  of  the  delay,  re- 
fused to  interfere.'  In  a  contract  for  the  sale  of  a  public 
house,  the  materiality  of  time  was  presumed  from  the 
conditions,  as  well  as  from  the  subject  matter.'  Mines 
being  liable  to  accidents,  and  to  sudden  and  unforeseen 
losses,  it  has  been  held,  in  several  cases,  that  time  is  of  the 
essence  of  the  contract  for  the  sale  of  such  property."  Al- 
though it  was  stipulated  in  a  contract  that  the  plaintiff 
should  purchase  a  field  adjoining  his  own,  procure  the  as- 
signment of  a  term,  and  do  other  things  requiring  time, 
yet  as  the  subject  of  the  agreement  was  a  colliery,  it  was 
held  that  time  was  so  far  of  the  essence  of  the  contract,  as 
to  make  it  the  duty  of  the  vendor  to  exercise  diligence, 
and  that  the  purchaser  had  a  right  to  decHne  to  complete, 
if  the  vendor  failed  to  do  so.'  In  a  contract  for  the  pay- 
ment of  money  to  obtain  patents,  it  was  held  that  time, 
from  the  nature  of  the  object  in  view,  was  essential.'"  In 
short,  whatever  may  be  the  nature  of  the  subject  matter, 

1  Wright  V.  Howard,  i  Sim.  &  Stu.,  190  ;  Nokes  v.  Lord  Kilmorey,  i  DeG.  & 
Sm.,  444. 

^Coslake  v.  Till,  i  Russ.,  376 ;  Doloret  v.  Rothschild,  i  Sim.  &  Stu.,  590  ;  and 
see  Lewis  v.  Lord  Lechmere,  10  Mod.,  503  ;  Campbell  v.  London  &  Brighton 
R.R.  Co.,  5  Hare,  519. 

^  Withy  V.  Cottle,  T.  &  R.,  78.  *  Walker  v.  Jeffreys,  i  Hare,  341. 

'Wright  V.  Howard,  i  Sim.  &  Stu.,  190.     '  Pollard  v.  Clayton,  i  K.  &  J.,  462. 

'Beaton  v.  Mapp,  2  Coll.  C.  C,  556. 

*  Prendergast  v.  Turton,  i  Y.  &  C.  C.  C,  no;  Clegg  v.  Edmondson,  26  L.  J. 
Ch.,  681  ;  Parker  v.  Frith,  i  Sim.  &  Stu.,  199,  n.;  City  of  London  v.  Mitford,  14 
Ves.,  58  ;  Eads  v.  Williams,  4  De  G.  M.  &  G.,  674. 

^  Macbryde  v.  Weekes,  22  Beav.,  533.      '"  Payne  v.  Banner,  15  L,  J.  Ch.,  227. 


634  LAPSE    OF    TIME.  §  460. 

the  time  for  the  performance  of  the  contract  will  be  re- 
garded, when  time  appears  to  be  a  distinct  feature  of  the 
transaction.'  If  the  property  is  going  to  waste,  equity 
makes  the  time  of  the  essence  of  the  contract.""  And  so, 
when  a  person  has  an  option  to  purchase,  to  be  exercised 
at  a  certain  time.'  The  circumstance  that  delay  would 
cause  a  party  serious  liability  or  loss,  will  incline  the  court 
to  regard  time  as  of  the  essence  of  the  contract.  Where 
a  tenant  contracted  for  the  sale  of  the  good-will  and  busi- 
ness, and  it  was  stipulated  that  the  contract  should  be 
closed  by  a  certain  day,  time  w^as  considered  essential  for 
the  reason  that  if  the  contract  were  not  completed  on  the 
day  named,  the  vendor  might  make  himself  liable  as  ten- 
ant for  the  ensuing  year.*  And  where  the  association  which 
was  to  participate  in  the  purchase  money  was  liable  to 
change,  non-payment  at  the  time  agreed  was  held  fatal  to 
the  contract.'  Where  between  the  time  fixed  for  the  de- 
livery of  the  conveyance,  and  the  subsequent  tender  of  the 
deed,  after  the  title  had  been  perfected,  circumstances  had 
materially  altered,  it  was  held  that  the  vendee,  who  had 
acted  in  good  faith,  would  not  be  compelled  to  accept  a 
deed  against  his  will,  when  he  was  willing  to  accept  it  at 
the  time  fixed  for  performance.'  Although  a  court  of 
equity  is  more  inclined  to  uphold  than  to  forfeit  contracts 
if  there  has  been  no  culpable  negligence,  and  it  can  do  full 
justice  between  the  parties,  yet  when  there  is  a  w^ant  of 
mutuality  in  the  obligations  arising  from  the  transaction, 
time  is  essential  in  equity  as  w^ell  as  at  law.'  W^here  a  per- 
son seeks  specific  performance  of  a  parol  contract  for  the 
purchase  of  land,  he  must  present  his  claim  without  delay, 
and  while   performance  can  be  enforced  without  injury  to 

1  Garretson  v.  Vanloon,  3  Iowa,  128;    Davis  v.  Stevens,  lb.,  158;   Scott  v. 
Fields,  7  Ohio,  Pt.  2,  90. 

^  Macbr}-de  v.  Weekes,  supra  ;  Hudson  v.  Temple,  29  Beav.,  536. 

'  Lord  Ranelagh  v.  Melton,  2  Dr.  &  Sm.,  278.  *  Coslake  v.  Till,  supr2. 

'  Carter  V.  Dean  of  Ely,  7  Sim.,  211. 

*  Young  V.  Rathbone,  16  N,  J.  Eq.,  224. 

'  Maughlm  v.  Perry,  35  Md.,  352 ;  Magoffin  v.  Holt,  i  Duvall,  95. 


<5  461.  TIME    MADE    ESSENTIAL    BY    STIPULATION.  635 

the  other  party,  and  must  show  that  he  has  done  nothing 
inconsistent  with  his  claim  for  performance.' 

§  461.  Time  made  essential  by  stipidation. — The  parties 
themselves  may  stipulate  that  time  shall  be  of  the  essence 
of  the  contract.'  This  has  been  done  in  almost  all  of  the 
modern  cases  in  which  time  has  been  strictly  regarded. 
Such  a  provision  will  be  enforced  except  under  very  pecu- 
liar circumstances.'  It  has  been  said  that  "  a  court  of 
equity  has  no  more  right  to  disregard  an  express  stipula- 
tion that  time  shall  be  of  the  essence  of  the  contract,  than 
it  has  to  give  a  year,  or  ten  years,  or  ninety-nine  years,  for 
the  payment  of  the  whole  or  of  one-half  of  the  purchase 
money  stipulated  for  in  cash,  if  it  should  appear  that  it  is 
difficult  or  impossible  for  the  purchaser  to  pay  at  the  time 
agreed  upon.'"  But  time  cannot  be  made  essential  in  a 
contract  merely  by  so  declaring,  if  it  would  be  unconscion- 

1  Goodwin  v.  Lyon,  4  Porter  Ala.,  297  ;    Porter  v.  Dougherty,  25  Pa.  St.  405. 

2  Kemp  V.  Humphreys,  13  111.,  573;  Prince  v.  Griffin,  27  lb.,  514;  Earl  v. 
Halsey,  i  McCarter,  N.  J.  Ch.,  332  ;  Grigg  v.  Landis,  21  N.  J.  Eq.,  494 ;  Fess- 
ler's  Appeal,  75  Pa.  St.,  483.  A  contract  for  the  sale  of  real  estate  provided 
th^t  "  in  case  the  second  party  shall  fail  to  make  the  payments  aforesaid,  and 
each  of  them,  punctually  and  upon  the  strict  terms  and  times  above  limited,  and 
likewise  to  perform  and  complete  all  of  his  agreements  and  stipulations  afore- 
said, strictly  and  Hterally  without  any  failure  or  default,  then  this  contract,  so 
far  as  it  may  bind  said  first  party,  shall  become  utterly  null  and  void,  and  all 
rights  and  interests  hereby  created,  or  then  existing,  in  favor  of  said  second 
party,  or  derived  from  him,  shall  utterly  cease  and  determine,  and  the  premises 
hereby  contracted  shall  revert  to  and  revest  in  said  first  party  without  any  dec- 
laration or  forfeiture  or  act  of  re-entry,  or  without  other  act  by  said  first  party 
to  be  performed,  and  without  any  right  of  said  second  party  of  reclamation  or 
compensation  for  money  paid  or  services  performed,  as  absolutely,  fully,  and 
perfectly,  as  if  the  contract  had  never  been  made.".  The  notes  given  for  the 
purchase  money  not  having  been  paid  when  due,  the  vendor  declared  a  forfeit- 
ure without  giving  up  the  notes  to  the  purchaser.  It  was  held  that  the  latter 
was  not  entitled  to  specific  performance,  an  offer  on  the  part  of  the  vendor  to 
return  the  notes  not  being  necessary  ;  and  that  the  fact  that  the  vendor  had 
previously  accepted  payments  past  due,  did  not  operate  as  a  waiver  of  his  right 
to  declare  a  forfeiture.     Phelps  v.  111.  Cent.  R.R.  Co.,  63  111.,  468. 

*  Stow  V.  Russell,  36  111.,  18  ;  Benedict  v.  Lynch,  i  Johns  Ch.,  370  ;  Potter  v. 
Tuttle,  22  Conn.,  512;  Baldwin  v.  Vanvorst,  10  N.  J.  Eq.,  577.  In  Hipwell  v. 
Knight,  I  Y.  &  C,  415,  Baron  Alderson  said  :  "  I  do  not  see  therefore  why,  if 
the  parties  choose,  even  arbitrarily,  to  stipulate,  provided  both  of  them  intend 
to  do  so,  for  a  particular  thing  to  be  done  at  a  particular  time,  such  a  stipula- 
tion is  not  to  be  carried  Hterally  into  effect  in  a  court  of  equity.  That  is  the 
real  contract.  The  parties  had  a  right  to  make  it.  Why  then  should  a  court  of 
equity  interfere  to  make  a  new  contract  which  the  parties  hav'e  not  made  ?  " 

*  Bullock  V.  Adams,  20  N.  J.  Eq.,  per  Zabriskie,  Chancellor.     See  ante,  §  436. 


6^,6  LAPSE    OF    TIME.  §461. 

able  to  allow  it.  Parties  may  stipulate  to  make  it  so,  where 
the  stipulation  is  reasonable  ;  but,  as  in  stipulated  dama- 
ges, if  the  stipulation  is  not  reasonable,  courts  wnll  not 
regard  it.'  The  following  examples  will  serve  to  show  the 
effect  of  stipulations  as  to  time.  Where  it  was  agreed  that 
land  should  be  conveyed  and  possession  given,  provided 
the  price  were  paid  on  a  particular  day,  and  the  purchaser 
died  just  before  the  time  fixed  for  payment,  it  was  held 
that  the  personal  representatives  of  the  deceased  could  not 
compel  the  vendor  to  convey.'  A.,  having  agreed  with  B. 
to  rent  him  a  store  on  his  procuring  C.  as  surety  for  the 
rent  before  a  day  named,  which  B.  failed  to  do,  it  was  held 
that  B.  was  not  entitled  to  a  decree  for  specific  perform- 
ance, nor  to  an  injunction.'  A  lease  provided  that  the 
lessee  might  purchase  the  premises  at  any  time  within  five 
years,  upon  a  written  notice  of  thirty  days  of  his  intention 
so  to  do.  It  was  held  that  the  notice  of  thirty  days  was  of 
the  essence  of  the  contract,  and  that  a  notice  given  two 
days  before  the  expiration  of  the  five  years  was  insufficient." 

'  Richmond  V.  Robinson,  12  Mich.,  193.  It  was  formerly  held  in  England, 
that,  in  a  contract  for  the  sale  and  purchase  of  real  estate,  time  could  not  be 
made  of  the  essence  of  the  contract,  and  that  such  an  agreement  would  not  be 
enforced  any  more  than  an  agreement  to  limit  the  right  of  redemption  by  a 
mortgagor.  But  Lord  Thurlow  is  said  to  have  been  the  only  English  chancellor 
who  adhered  to  that  doctrine.  Lord  Loughborough,  who  had  countenanced  it, 
afterward,  in  Lloyd  v.  Collet,  4  Bro.  C.  C,  469, ;;.,  said  :  "  There  is  nothing  of  more 
importance  than  that  ordinary  contracts  between  man  and  man  should  be  cer- 
tain and  fixed,  and  that  it  should  be  certainly  known  when  a  man  is  bound,  and 
when  he  is  not.  It  is  one  thing  to  say  that  time  is  not  so  essential  that  in  no 
case  in  which  the  day  has,  by  any  means,  been  suffered  to  elapse,  the  court 
would  relieve  against  it  and  decree  performance.  The  conduct  of  the  parties, 
inevitable  accident,  etc.,  might  induce  the  court  to  relieve.  But  it  is  a  different 
thing  to  say  that  the  appointment  of  a  day  is  to  have  no  effect  at  all,  and  that 
it  is  not  in  the  power  ol  the  parties  to  contract  that  if  the  agreement  is  not  exe- 
cuted at  a  particular  time,  the  parties  shall  be  at  liberty  to  rescind  it."  Lord 
Cranworth,  V.  C,  in  Parkin  v.  Thorold,  2  Sim.  N.  S.,  i,  held  that  when  a  pur- 
chaser had  agreed  that  he  would  take  a  title  if  made  at  a  given  day,  but  other- 
wise that  he  would  not,  a  court  of  equity  could  not,  any  more  than  a  court  of 
law,  give  relief  to  a  vendor  who  had  failed  to  make  a  title  at  the  day  specified. 
And  he  remarked  that  Lord  Thurlow's  dictum  that  a  purchaser  could  not  so 
stipulate,  rested  on  i-iO  principle,  and  had  often  been  repudiated  as  not  truly  ex- 
pressing the  doctrine  of  the  court. 

^  Jones  V.  Noble,  3  Bush  Ky.,  694.  And  see  Shuffleton  v.  Jenkins,  i  Morris, 
Iowa,  427 ;  Reed  v.  Breeden,  61  Pa.  St.,  460 ;  Gale  v.  Archer,  42  Barb.,  320 ; 
Troy  V.  Clarke,  30  Cal.,  419;  McClure  v.  King,  15  La.  Ann.,  220. 

'Mitchell  V.  Wilson,  4  Edvv.  Ch.,  697.  ■*  Mason  v.  Payne,  47  Mo.,  517. 


§  /^6l.  TIME    MADE    ESSENTIAL    BY    STIPULATION.  637 

The  same  was  held  where  a  contract  for  the  sale  of  land 
was  to  be  void  unless  two  notes  were  paid  at  maturity,  the 
time  of  their  payment  to  be  regarded  as  of  the  essence  of 
the  contract,  and  one  note  was  paid  at  maturity,  and 
a  tender  of  payment  made  of  the  other  six  days  after  it 
became  due.'  A  contract  of  sale  provided  that  the  pur- 
chaser should  build  a  house  on  the  front  of  the  lot  within 
a  specified  time,  or,  in  lieu  thereof,  should,  on  that  day, 
pay  to  the  vendor  one  thousand  dollars  as  the  first  pay- 
ment toward  the  purchase  money ;  and  that  if  the  pur- 
chaser failed  to  perform  all  or  any  of  the  covenants,  "at 
the  time  or  times  therein  before  limited,"  then,  and  in  such 
case,  all  the  covenants  and  agreements  on  the  part  of  the 
vendor  should  cease  and  be  absolutely  void,  and  all  the 
purchaser's  right  or  interest  in  the  premises,  either  at  law 
or  in  equity,  should  cease.  The  purchaser  having  failed  to 
fulfil  at  the  time  stipulated,  and  brought  a  suit  for  specific 
performance,  it  was  held,  affirming  the  decree  of  the  vice- 
chancellor,  that  he  was  not  entitled  to  equitable  relief." 

'  Heckard  v.  Sayre,  34  111.,  142.  The  purchaser  of  city  lots  gave  his  note  pay- 
able four  months  after  date,  in  consideration  whereof  the  owner  of  the  lots  con- 
tracted to  give  a  deed  of  them  upon  the  payment  of  the  note.  The  note  having 
become  due,  a  deed  tendered,  and  payment  of  the  note  demanded  and  refused, 
it  was  held  that  the  purchaser  was  not  entitled  to  specific  performance  of  the 
contract.     Pearis  v.  Covilland,  6  Cat'.,  617. 

*  Smith  V.  Wells,  7  Paige  Ch.,  22 ;  S.  C,  2  Edw.  Ch.,  78.  In  this  case,  Wal- 
worth, Ch.,  said :  "  Although  in  theory  the  interest  is  supposed  to  be  a  fair 
equivalent  for  the  non-payment  of  money  at  the  time  agreed  upon,  we  all  know 
that,  in  point  of  fact,  the  person  to  whom  it  is  due  frequently  sustains  great  losses 
in  consequence  of  the  disappointment,  which  the  legal  rate  of  interest  cannot 
compensate.  On  the  other  hand,  it  frequently  happens  that  the  perfecting  of 
the  title,  and  the  delivery  of  the  possession  of  the  premises  at  the  time  contem- 
plated by  the  purchaser,  is  of  essential  benefit  to  him,  which  cannot  be  compen- 
sated by  damages  which  are  ascertainable  by  the  ordinary  rules  of  computing 
damages.  It  would,  therefore,  not  only  be  unreasonable,  but  entirely  unjust,  for 
any  court  to  hold  that  parties,  in  making  executory  contracts  for  the  sale  or  pur- 
chase of  real  estate,  should  not  be  permitted  to  make  the  time  of  performance 
an  essential  and  binding  part  of  the  contract  in  equity  as  well  as  at  law,  where, 
as  in  this  case,  the  other  party  was  fully  apprised  of  the  intention  to  insist  upon 
a  strict  performance  at  the  day.  Here  there  was  no  such  impossibility  as  might 
not  have  been  foreseen  and  provided  against  by  proper  care  and  vigilance.  Un- 
der such  circumstances,  if  the  property  had  very  much  increased  in  value  after 
the  making  of  the  original  contract,  the  defendant  is  fairly  entitled  to  the  benefit 
thereof  under  the  agreement  by  which  the  complainant  contracted  to  relinquish 
all  claims  upon  the  property,  either  at  law  or  in  equity,  if  he  did  not  comply  with 
the  terms  of  the  agreement  at  the  day.     And  as  there  is  nothing  inequitable  or 


638  LAPSE    OF    TIME.  §  462. 

§  462.  Proof  that  time  was  of  the  essence  of  the  contj'act. 
— To  render  time  essential,  it  must  clearly  appear  that  such 
was  the  intention  of  the  parties ;  and  it  is  not  sufficient 
that  a  period  is  named,  during  which,  or  previous  to  which, 
something;  shall  be  done.  The  insertion,  for  instance,  of  a 
day  for  payment,  does  not  make  it  essential.'  So,  of  a  day 
for  the  delivery  of  the  abstract,  although  the  purchaser, 
immediately  upon  the  expiration  of  the  time,  refuses  to 
proceed."  And  the  same  has  been  held  as  to  a  day  fixed 
for  the  completion  of  the  contract.'  Time  is  made  of  the 
essence  of  a  contract  which  provides  that  "  In  case  of  the 
failure  of  the  said  S.  to  pay  the  aforesaid  sums  of  money 
at  the  dates  aforesaid,  or  any  part  thereof,  to  the  said  L., 
his  heirs  or  assigns,  then  the  said  S.  shall  forfeit  to  the  said 
L.  the  sums  already  paid,  and  no  deed  shall  pass  for  said 
land."'  Where  the  vendee  gave  a  bond  for  the  payment 
of  the  purchase  money,  provided  a  third  person  or  his  le- 
gal representatives  or  attorney  in  fact,  should,  on  or  before 
a  certain  day,  release  a  specified  portion  of  the  land  sold,  it 
was  held  that  time  was  of  the  essence  of  the  contract'  A. 
having  a  claim  on  public  land,  and  being  in  possession, 
procured  B.  to  enter  the  land,  and  took  a  lease  from  him, 

unconscientious  in  her  insisting  upon  this  part  of  the  contract,  I  think  the  vice- 
chancellor  was  right  in  not  making  a  new  contract  for  her  contrary  to  the  un- 
derstanding of  both  parties  when  they  entered  into  this  agreement."  A  con- 
tract for  the  sale  of  a  lot  of  land  contained  the  following  covenant :  "  In  the 
event  of  failure  to  comply  with  the  terms  hereof  by  the  party  of  the  second  part, 
the  party  of  the  first  part  shall  be  released  from  all  obligations  in  law  or  equity 
to  convey  said  property,  and  said  party  of  the  second  part  shall  forfeit  all  right 
thereto."  The  purchaser,  having  neglected  to  make  his  payments  without  ex- 
cuse for  his  delay,  it  was  held  that  a  court  of  equity  would  not  relieve  him  from 
the  consequences  of  his  default.  Grey  v.  Tubbs,  43  Cal.,  359.  Rhodes,  J.,  in 
delivering  the  opinion,  remarked  that  courts  "  will  not  incjuire  into  the  motive, 
or  the  sufficiency  of  the  motive,  that  induced  the  parties  to  contract  that  time 
should  be  essential  in  the  performance  of  any  of  the  agreements  contained  in  the 
contract  of  purchase.  But  if  it  appears  that  the  parties  have  thus  contracted, 
courts  of  equity  will  not  disregard  the  contract  in  order  to  give  effect  to  some 
vague  surmise  that  all  the  vendor  intended  to  secure  by  the  contract,  was  the 
payment  of  the  purchase  money  with  interest  at  some  indefinite  time." 

'  Hearne  v.  Tenant,  13  Ves.,  287  ;  Knott  v.  Stephens,  5  Oregon,  235. 

""  Roberts  v.  Berry,  18  Beav.,  31,  Affd.  3  De  G.  M.  &  G.,  284. 

^Parkin  v.  Thorold,  16  Beav.,  59;  contra,  S.  C,  2  Sim.  N.  S.,  i,  per  Lord 
Cranworth. 

*  Snider  v.  Lehnherr,  5  Oregon,  385.       *  Westerman  v.  Means,  12  Pa.  St.,  97 


§§  4^3'  4^4-  TIME    HOW    RECKONED.  639 

agreeing  to  leave  at  the  end  of  the  term.  The  lease  pro- 
vided that  if  A.  then  paid  B.  one  hundred  dollars,  he 
should  have  a  quit-claim  deed,  and  it  was  further  stipulated 
that  "the  above  shall  be  forfeited,  if  either  shall  not  keep 
all  the  covenants."  Payment  not  having  been  made  by  A. 
pursuant  to  the  agreement,  it  was  held  that  time  was  of  the 
essence  of  the  contract,  and  specific  performance  was  re- 
fused.' 

§  463.  Stipulation  as  to  possession. — If  a  contract  for 
purchase  provides  that  possession  shall  be  given  by  a  speci- 
fied day,  the  word  "possession"  means  possession  with  a 
good  title.  This  would  be  the  legal  construction  of  the 
contract,  and  the  construction  is  the  same  in  equity. 
Where  a  person  agreed  to  purchase  leasehold  premises  for 
his  own  residence,  and  contracted  that  he  should  have  pos- 
session by  a  certain  day,  but  the  vendor,  although  he  ten- 
dered possession,  failed  to  show  a  good  title  by  the  day 
named,  it  was  held,  reversing  the  decision  of  the  vice-chan- 
cellor, that  the  stipulation  as  to  time  was  of  the  essence  of 
the  contract,  and  the  bill  for  specific  performance  was  dis- 
missed.' A  court  of  equity  will,  however,  decree  specific 
performance,  notwithstanding  a  failure  to  keep  the  dates 
assigned  by  the  contract,  either  for  completion  or  for  the 
steps  toward  completion,  if  it  can  do  justice  between  the 
parties,  and  there  is  nothing  in  the  stipulations,  the  nature 
of  the  property,  or  the  surrounding  circumstances  which 
would  make  it  inequitable  to  interfere. 

§  464.  Time  how  reckoned. — Where  a  contract  for  the 
sale  of  land  provides  that  it  shall  be  performed  within  a 
given  time,  the  time  runs  from  the  date  of  the  contract, 
and  not  from  its  delivery,  unless,  owing  to  delay  in  deliver- 

1  Usher  v.  Livermore,  2  Iowa,  117.  When  the  contract  makes  time  essential 
as  to  some  of  the  conditions  in  the  vendor's  favor,  the  court  will  incline  to  con- 
sider it  essential  as  to  others  against  him.  A  vendor  so  situated  "cannot  fairly 
complain  of  being  held  strictly  to  the  conditions  themselves The  plain- 
tiff's proposition  is,  that  the  purchaser  shall  be  held  by  a  cable,  and  the  vendor 
by  a  skein  of  silk."     Knight  Bruce  in  Seaton  v.  Mapp,  2  Coll.  C.  C,  556,  564. 

2  Tilley  v.  Thomas,  L.  R.  3,  Ch.  61. 


640  LAPSE    OF   TIME.  §  465. 

ing  it,  performance  within  the  time  is  impossible  or  unrea- 
sonable. A  bill  filed  by  the  purchaser  for  specific  perform- 
ance was  dismissed  where  a  contract  containing  the  stipula- 
tion, "papers  to  pass  within  ten  days,"  was  dated  March 
19th,  but  was  not  signed  and  delivered  until  the  2 2d,  and 
the  purchaser  did  not  "tender  performance  until  the  31st, 
and  the  evidence  tended  to  show  that  the  property  had 
changed  in  value."  If  a  contract  bears  an  impossible  date, 
as  February  30th,  the  time  must  be  reckoned  from  its  de- 
livery." 

§  465.  Limitation  of  time  by  notice. — Although  no  time 
is  fixed  in  the  contract,  a  party  will  not  be  permitted  to 
trifle  with  the  interests  of  the  opposite  party  by  unneces- 
sary delay  ;  and  the  latter  may  designate  some  reasonable 
time — not  capriciously  or  unreasonably,  or  for  the  purpose 
of  surprising  the  other,  and  thus  getting  clear  of  a  bargain, 
but  a  reasonable  time  according  to  the  circumstances  of 
the  case — within  which  he  will  expect  performance,  or  that 
the  agreement  will  be  rescinded."  The  time  named  in  the 
notice  must  be  sufficient  for  the  proper  closing  of  the 
transaction  ;  and  neither  party  will  be  permitted  arbitrarily 
and  suddenly  to  terminate  the  negotiations.*  Fourteen 
days  were  held  not  to  be  a  reasonable  time  within  which  to 
require  the  vendor  to  produce  a  deed  and  complete  the 
title."  And  where  the  vendor  took  more  than  six  weeks 
to  furnish  the  abstract,  it  was  held  an  unreasonably  short 

'  Goldsmith  v.  Guild,  lo  Allen,  239.  See  Henry  v.  Jones,  8  Mass.,  453  ;  Blan- 
chard  v.  Hilliard,  11  lb.,  85  ;  Dugan  v.  Colville,  8  Texas,  126. 

«  Styles  V.  Wardle,  4  B.  &  C,  908. 

'  Taylor  v.  Brown,  2  Beav.,  180;  Benson  v.  Lamb,  9  lb.,  502  ;  Nokes  v.  Lord 
Kilmorey,  i  De  G.  &  Sm.,  444;  Falls  v.  Carpenter,  i  Dev.  &  Batt.  Eq.,  237  ; 
Thompson  v.  Dulles,  5  Rich.  Eq.,  370.  It  was  formerly  held  that  time  could 
not  be  made  essential  by  subsequent  notice.  Radcliffe  v.  Warrington,  12  Ves., 
326  ;  Reynolds  v.  Nelson,  6  Mad.,  18.  Where  a  notice  to  complete,  or  the  con- 
tract would  be  abandoned,  was  given  by  the  vendor  the  25th  of  Januarys  and  a 
negotiation  which  followed  was  terminated  on  the  5th  of  February,  by  the  ven- 
dor's claiming  immediate  performance,  and  a  bill  for  specific  performance  was 
filed  by  the  vendee  on  the  4th  of  March,  it  was  held  that  the  vendee  had  pro- 
ceeded with  reasonable  promptitude.     Prothro  v.  Smith,  6  Rich.  Eq.,  324. 

^  Taylor  v.  Brown,  supra  ;  King  v.  Wilson,  6  Beav.,  124. 

'  Parkin  v.  Thorold,  16  Beav,,  59. 


§  465-  LIMITATION    OF    TIME    BY    NOTICE.  64I 

time  for  him  to  insist  on  the  purchaser's  completing.'  On 
the  other  hand,  where  a  vendee  brought  a  suit  for  specific 
performance  two  years  after  the  vendor  gave  him  notice 
that  he  had  renounced  the  agreement,  it  was  held  that  the 
vendee  had  lost  his  remedy  in  equity  by  his  delay  in  filing 
the  bill.'  In  a  suit  by  the  purchaser  for  specific  perform- 
ance, it  appeared  that,  by  the  contract,  payment  of  the 
purchase  money  was  a  condition  precedent  to  the  giving  of 
the  deed,  that  a  small  payment  was  accepted  after  default, 
and  that  a  few  months  thereafter  payment  in  full  had  been 
often  demanded,  and  the  purchaser  notified  that,  if  he  did 
not  pay,  the  vendor  would  have  to  sell  the  land  to  another, 
which,  payment  not  having  been  made,  was  subsequently 
done.  The  bill  was  dismissed  with  costs,  the  court  holding 
that  the  vendor  was  not  bound  to  wait  any  longer  on  the 
purchaser,  but  that  the  vendor  had  a  perfect  right  to  exact 
immediate  payment,  or  to  sell  the  land  to  some  one  else.' 
If  the  vendor  has  previously  refused  to  remove  an  objec- 
tion, a  time  to  remove  it,  which,  in  the  first  instance,  would 
have  been  regarded  as  insufficient,  may  be  deemed  reason- 
able, after  which  the  purchaser  may  decline  to  proceed.' 
And  where  notice  to  rescind  was  waived  in  case  evidence 
of  title  was  produced  forthwith,  which  was  not  done,  the 
bill  w^as  dismissed.'  So,  an  apparently  short  notice  may  be 
made  reasonable  by  the  nature  of  the  contract.  Thus, 
where  A.  contracted  with  B.  to  grant  him  the  lease  of  a 
mine,  and  for  that  purpose  to  purchase  the  adjoining  land, 
to  procure  the  assignment  of  a  term,  and  do  other  things 


'  Pegg  V.  Wisden,  16  Beav.,  239.  -  White  v.  Bennett,  7  Rich.  Eq.,  260. 

^  Hatch  V.  Cobb,  4  Johns  Ch.,  559.  Kent,  Ch.,  "If  the  defendant  had  not 
parted  with  his  interest  before  the  fiHng  of  the  bill,  it  might,  even  then,  have 
been  a  point  deserving  of  consideration,  whether  the  plaintiff  was  entitled  to  as- 
sistance, when  no  accident,  mistake,  or  fraud  had  intervened  to  prevent  the  per- 
formance of  the  contract  on  his  part,  and  w'hen,  after  indulgence,  and  after  con- 
siderable subsequent  delay,  he  had  twice  been  required  to  make  paj-ment,  and 
had  omitted  to  do  it.  The  acquiescence  in  his  default,  or  the  v/aiver  of  it,  by 
the  defendant,  had  terminated,  before  the  assignment,  by  these  calls  for  pay- 
ment."    See  Ballard  v.  Walker,  3  Johns  Cas.,  60. 

''  Nott  V.  Ricard,  22  Beav.,  307.  ^  Stewart  v.  Smith,  6  Hare,  2??,  ;/. 

41 


642  LAPSE    OF    TIME.  §  466. 

requiring  time,  and  nine  weeks  having  passed  without  A. 
informing  B.  when  the  contract  was  Hkely  to  be  com- 
pleted, B.  gave  A.  notice  to  complete  within  a  month,  or 
the  contract  would  be  rescinded,  it  was  held  that  as,  owing 
to  the  subject  matter  of  the  contract  which  rendered  expe- 
dition on  the  part  of  the  lessor  essential,  the  month's  no- 
tice was  reasonable.'  A  notice  specifying  a  time  within 
which  a  contract  must  be  performed,  to  be  operative,  must 
be  explicit.  A  notice  that  non-performance  by  a  certain 
day  would  be  regarded  as  equivalent  to  a  refusal  to  fulfil 
the  contract,  is  not  tantamount  to  a  notice  that  the  con- 
tract would  then  be  considered  as  rescinded."  It  has  been 
held  that  the  notice,  to  be  admissible  in  behalf  of  the  plain- 
tiff, must  be  in  writing ;  but  not  when  set  up  as  a  defence.' 
§  466.  Stipulation  as  to  time  liberally  construed. — Time 
is  not  usually  considered  of  the  essence  of  the  contract, 
unless  it  distinctly  appears  that  it  was  the  design  of  the 
parties  to  make  time  essential.'  The  plaintiff's  failure 
should  be  such  as  to  violate  a  condition  precedent  to  his 
right  to  enforce  the  contract,  or  be  such  as  to  render  the 
contract  void  if  not  reasonably  excused,  or  in  some  other 
manner  make  it  clearly  inequitable  that  the  plaintiff  should 
have  a  decree.'  A  stipulation  that,  in  case  of  default,  a 
party  shall  forfeit  his  rights  under  the  contract,  may  have 
been  inserted  by  w^ay  of  a  penalty  merely,  in  order  to  in- 
duce a  more  prompt  performance.  When  such  was  obvi- 
ously the  intention  of  the  parties,  if  the  party  in  default 
has  acted  in  good  faith,  given  a  reasonable  excuse  for  the 


'  MacBryde  v.  Weekes,  22  Beav.,  533.  *  Reynolds  v.  Nelson,  supra. 

^  Nokes  V.  Lord  Kilmorey,  supra. 

^  Brumfield  v.  Palmer,  7  Blackf.,  227  ;  Ewing  v.  Crouse,  6  Ind.,  312  ;  Keller 
V.  Fisher,  7  lb.,  718;  Mathews  v.  Gillis,  i  Iowa,  242  ;  Jones  v.  Robbins,  29 
Me.,  351  ;  Walton  v.  Wilson,  30  Miss.,  576;  Pennock  v.  Ela,  41  N.  Y.,  189; 
Huffman  v.  Humner,  7  N.  J.  Eq.,  263  ;  Younger  v.  Welch,  22  Texas,  417  ;  Run- 
nels V.  Jackson,  i  How.  Miss.,  358  ;  White  v.  Butcher,  6  Jones  Eq.,  231  ;  Smoote 
V.  Rea,  19  Md.,  398;  Kercheval  v.  Swope,  6  Monroe,  362  ;  Hanna  v.  Ratekin, 
43  111.,  462  ;  Miller  v.  Miller,  25  N.  J.  Eq.,  354.  See  Converse  v.  Blumrich,  14 
Mich.,  109. 

'  Quinn  v.  Roath,  37  Conn,,  16. 


§  466.     STIPULATION  AS  TO  TIME  LIBERALLY  CONSTRUED.     643 

delay,  and  tendered  performance  with  reasonable  diligence, 
and  the  other  party  has  sustained  no  damage  by  the  delay, 
a  court  of  equity  will  decree  specific  performance.'  A  con- 
tract for  the  sale  of  land  on  which  there  was  a  mortgage 
provided  that  the  purchasers  should  satisfy  and  discharge 
the  mortgage  at  maturity,  and  on  or  before  a  given  day 
erect  on  the  premises  permanent  improvements  of  a  speci- 
fied value,  or,  in  the  event  that  the  said  improvements  were 
of  less  value  than  the  sum  named,  that  the  purchasers,  on 
or  before  the  said  day,  should  discharge  so  much  of  the 
principal  of  the  mortgage  debt  as  was  equivalent  to  the 
difference  between  the  value  of  the  improvements  erected 
and  the  said  sum  ;  and  if  the  purchasers  failed  to  comply 
with  their  part  of  the  agreement,  then  the  agreement  was 
to  be  void,  and  the  land,  with  all  the  improvements  thereon, 
immediately  revert  to  the  vendors.  A  suit  having  been 
brought  by  the  purchasers  for  specific  performance,  it  ap- 
peared that,  although  they  had  not  fulfilled  the  terms  of 
their  contract,  in  respect  either  to  the  improvements  or  the 
payment,  yet  that,  prior  to  the  maturity  of  the  mortgage, 
they  had  paid  on  account  thereof  a  large  sum.  It  was  held 
that  time  was  not  of  the  essence  of  the  contract,  but  that 
the  provisions  in  relation  thereto  were  inserted  by  way  of 
penalty,  and  that,  as  the  plaintiffs  had  acted  in  good  faith, 
and  the  defendants  had  not  been  damaged  by  the  delay,  the 
plaintiffs  were  entitled  to  a  decree.'     Where  a  vendee  re- 

^  Scarlett  v.  Stein,  40  Md.,  512. 

2  Steele  v.  Branch,  40  Cal.,  3.  In  Seton  v.  Slade,  7  Ves.,  265,  Lord  Eldon 
said  :  "  To  say  time  is  regarded  in  this  court  as  at  law  io  quite  impossible.  The 
case  mentioned  of  a  mortgage  is  very  strong  ;  an  express  contract  under  hand 
and  seal.  At  law  the  mortgagee  is  under  no  obligation  to  reconvey  at  that  par- 
ticular day ;  and  yet  the  court  says  that  though  the  money  is  not  paid  at  the 
time  stipulated,  if  paid  with  interest  at  the  time  a  reconveyance  is  demanded, 
there  shall  be  a  reconveyance  upon  this  ground  :  that  the  contract  is  in  this 
court  considered  a  mere  loan  of  money,  secured  by  a  pledge  of  the  estate.  But 
that  is  the  doctrine  upon  which  the  court  acts  against  what  is  Xht  prima  facie 
import  of  the  terms  of  the  agreement  itself,  which  does  not  import  at  law  that 
once  a  mortgage,  always  a  mortgage.  But  equity  says  that.  And  the  doctrine 
of  this  court  as  to  redemption,  does  give  countenance  to  that  strong  declaration 
of  Lord  Thurlow  that  the  agreement  of  the  parties  will  not  alter  it.  For  I  take 
.it  to  be  so,  in  the  case  of  a  mortgage,  that  you  shall  not  by  special  terms  alter 
what  this  court  says  are  the  special  terms  of  the  contract.     Whether  that  is  to 


644  LAPSE    OF    TIME.  §  467. 

ccivcd  title  upon  a  statutory  foreclosure,  agreeing  to  give 
the  owner  of  the  equity  of  redemption  further  time  to  re- 
deem or  purchase  back,  it  was  held  that  time  was  not  so  far 
of  the  essence  of  the  contract  as  to  prevent  its  enforce- 
ment upon  equitable  terms  within  a  reasonable  time  after 
the  expiration  of  the  period  specified/  Of  course,  if  both 
parties  are  in  default,  neither  can  complain  of  non-perform- 
ance at  the  time." 

§  467.  Defaiilt  of  p2irchaser  7iot  a  bar  to  relief. — If  time 
admits  of  compensation,  as  it  perhaps  always  does  when 
lapse  of  it  arises  from  money  not  having  been  paid  at  a  par- 
ticular day,  it  is  never  an  essential  part  of  the  agreement." 

be  applied  to  the  case  of  a  purchase  is  a  different  consideration.  I  only  say 
time  is  not  regarded  here  as  at  law.  So,  in  the  instance  of  a  mortgag-e  with  in- 
terest at  five  per  cent.,  and  a  condition  to  take  four  if  regularly  paid  ;  or  at  four 
per  cent.,  with  a  condition  for  five  if  not  regularly  paid.  At  law,  you  might  in 
that  case  recover  the  five  per  cent.,  for  it  is  the  legal  interest.  But  this  court 
regards  the  five  per  cent,  as  a  penalty  for  securing  the  four  ;  and  time  is  no  fur- 
ther the  essence,  than  that  if  it  is  not  paid  at  the  time,  the  party  may  be  relieved 
from  paying  the  five  per  cent,  by  paying  the  four  per  cent.,  and  putting  the  other 
party  in  the  same  condition  as  if  the  four  per  cent,  had  been  paid  ;  that  is,  by 
paying  him  interest  upon  the  four  per  cent,  as  if  it  had  been  received  at  the 
time.  So  in  this  court  before  courts  of  law  dealt  with  a  bond  under  a  penalty, 
as  they  do  now.  Time  was  of  the  essence  there.  But  this  court  relieved  against 
the  penalty  long  before  courts  of  law.  And  there  are  many  other  instances. 
But  there  is  another  circumstance.  The  effect  of  a  contract  for  purchase  is  very 
different  at  law  and  in  equity.  At  law,  the  estate  remains  the  estate  of  the 
vendor,  and  the  money  that  of  the  vendee.  It  is  not  so  here.  The  estate,  from 
the  sealing'  of  the  contract,  is  the  real  property  of  the  vendee.  It  descends  to 
his  heirs.  It  is  devisable  by  his  will ;  and  the  question  whose  it  is,  is  not  to  be 
discussed  merely  between  the  vendor  and  vendee,  but  may  be  to  be  discussed 
between  the  representatives  of  the  vendee.  Therefore  I  do  not  take  a  full  view 
of  the  subject  upon  the  question  of  time,  unless  that  is  taken  into  considera- 
tion ;  and  many  nice  and  difficult  cases  may  be  put  in  which  the  question 
would  be  to  be  discussed  betw^een  the  representatives,  founded  upon  the  con- 
tract between  the  vendor  and  vendee.  It  is  obvious  that  a  due  consideration  o 
the  value  of  the  objections  will  embrace  that  consideration  also.  The  cases 
seem  to  have  varied  a  good  deal.  The  cases  before  Lord  Thurlow  proceed 
upon  this  :  that,  in  the  nature  of  the  thing,  there  must  be  a  degree  of  good  faith 
between  the  parties  not  to  turn  round  the  contract  upon  frivolous  objections. 
As  to  the  contract  of  the  party,  the  slightest  objection  is  an  answer  at  law.  But 
the  title  to  an  estate  requires  so  much  clearing  and  inquiry  that,  unless  substan- 
tial objections  appear,  not  merely  as  to  time,  but  an  alteration  of  circumstances 
affecting  the  value  of  the  thing,  or  objections  arising  out  of  circumstances  not 
merely  as  to  time,  but  the  conduct  of  the  parties  during  the  time — unless  the 
objection  can  be  so  sustained — many  of  the  cases  go  the  length  of  establishing 
that  the  objection  cannot  be  maintained." 

'  Moote  V.  Scriven,  33  Mich.,  500.  '^  Crabtree  v.  Levings,  53  111.,  526. 

^  Gibbs  V.  Champion,  3  Ohio,  335.    Glover  v.  Fisher,  11  111.,  666;  Andrews  v. 
Sullivan,  7  lb.,  327  ;  Reed  v.  Jones,  8  Wis.,  392  ;  Armstrong  v.  Pierson,  5  Iowa, 


§  4.6y.       DEFAULT  OF  PURCHASER  NOT  A  BAR  TO  RELIEF.       645 

Specific  performance  of  an  intestate's  contract  to  convey 
was  decreed,  though  the  purchaser  had  not  paid  the  balance 
of  the  price  promptly,  and  had  presented  a  claim  against 
the  estate  to  have  refunded  the  instalment  previously  paid.' 
In  another  case,  a  decree  was  rendered  in  favor  of  the  minor 
heirs  and  administrators  of  the  purchaser  of  certain  land, 
against  the  devisees  and  mortgagee  of  the  vendor  who  was 
deceased,  on  a  contract  whereby  the  administrators  were 
to  pay,  within  a  specified  time,  the  amount  due  on  the  mort- 
gage, and  the  mortgagee  w^as  to  release  to  the  devisees  his 
interest  in  the  land  ;  and  the  devisees  were  to  execute  a 
conveyance  of  the  land  to  the  heirs  who  had  taken  posses- 
sion. A  demand  for  payment  having  been  made  by  the 
mortsfaeee  from  one  of  the  administrators  and  refused,  the 
mortgage  was  subsequently  paid  off  by  the  devisees,  and 
the  interest  of  the  mortgagee  in  the  land  released  to  them. 
Afterward  the  devisees  recovered  the  land  from  the  heirs 
in  ejectment,  and  the  latter  then  tendered  to  the  former  the 
purchase  money  and  interest,  which  was  refused.  Upon  a 
suit  in  equity  brought  by  the  heirs  against  the  devisees,  an 
injunction  was  granted  against  the  judgment  in  ejectment, 
and  a  conveyance  of  the  land  by  the  devisees  decreed  on 
payment  to  them  of  the  full  amount  due,  notwithstanding 
the  land  had  risen  a  good  deal  in  value."  Where  a  vendee 
of  land  had  paid  a  large  part  of  the  purchase  money,  and  a 
judgment  was  rendered  for  the  balance,  the  interest  on 
which  was  more  than  equalled  by  the  rents  and  profits,  it 
was  held  that  a  delay  of  eighteen  years  to  enforce  the  con- 

317;  Hall  V.  Delaplaine,  5  Wis.,  206;  D'Arras  v.  Keyser,  26  Pa.  St.,  249;  Con- 
verse V.  Blumrich,  14  Mich.,  109;  Magoffin  v.  Holt,  i  Duvall,  95  ;  Crittenden  v. 
Drury,  4  Wis.,  205  ;  Bromier  v.  Caldwell,  8  Mich.,  465  ;  Primm  v.  Barton,  18 
Texas,  206  ;  Keller  v.  Fisher,  7  Ind.,  718  ;  De  Camp  v.  Crane,  19  N.  J.  Eq.,  166  ; 
Shafer  v.  Niver,  9  Mich.,  253  ;  Showman  v.  Harford,  55  Me.,  197.  See  anU, 
§436.  Where,  by  the  terms  of  an  auction  sale,  part  of  the  purchase  money  is  to 
be  paid  to  the  auctioneer  within  a  certain  time,  which  is  not  done,  his  authority 
to  receive  the  money  is  not  revoked  without  an  order  to  that  effect  from  his 
principal.  Pinckney  v.  Hagadorn,  i  Duer,  89.  As  to  what  was  deemed  due 
diligence  in  attempting  to  tender  the  purchase  money,  see  Hubbell  v.  Schoen- 
ing,  49  N.  y„  326. 

'  Pritchard  v.  Todd,  38  Conn.,  413.  ^  Linton  v.  Potts,  5  Blackf.,  397. 


646  LAPSE    OF   TIME.  §  467. 

tract,  was  not  a  bar  to  a  suit  for  specific  performance.' 
Where  a  contract  for  the  sale  of  land  provided  that  upon 
failure  of  the  purchaser  to  make  his  payments  as  they  fell 
due,  or  to  pay  the  taxes  thereafter  accruing,  the  contract 
should  be  forfeited,  and  that  time  was  of  the  essence  of  the 
contract,  and,  the  taxes  not  having  been  paid,  the  vendor 
paid  them,  it  was  held  that  as  the  purchaser  shortly  after- 
ward tendered  to  the  vendor  the  amount  thus  paid  with  in- 
terest, he  was,  notwithstanding  his  previous  default,  entitled 
to  specific  performance."  Nor  does  a  subsequent  agreement 
that  if  the  whole  amount  be  not  paid  on  a  certain  day,  the 
payment  already  made  shall  be  forfeited  and  the  original 
bargain  be  at  an  end,  give  any  additional  right  to  rescind.* 
Where  a  subsequent  agreement  was  not  only  positive  that, 
in  default  of  payment  by  a  particular  day,  the  articles  sold 
should  be  delivered  up,  and  the  parties  entered  into  an  order 
of  court  to  enforce  performance  of  the  subsequent  agree- 
ment in  equity  ;  on  the  ground  that  the  agreement  and  order 
were  in  the  nature  of  a  penalty  and  intended  only  as  secu- 
rity for  the  payment  of  money  the  court  relieved  against 
them  on  payment  of  principal,  interest,  and  costs/  On  the 
same  principle,  equity  relieves  against  the  exercise  of  a  legal 
right  expressly  arising  out  of  a  contract ;  as  in  the  case  of  a 
mortgage,  or  a  right  of  entry  for  a  forfeiture  incurred  by 
the  non-performance  of  a  covenant  in  a  lease  to  pay  the  rent 
at  a  particular  day,  or  against  the  forfeiture  of  the  deposit 
by  reason  of  the  non-payment  of  the  purchase  money,  or 
against  the  payment  of  a  higher  rate  of  interest  if  the  princi- 
pal be  not  paid  by  a  day  named.  A.  purchased  land  of  B.» 
paid  one-third  of  the  price,  and  took  possession,  it  being 
agreed  that  B.  should  give  a  deed  in  three  months,  and  that 
A.  should  give  a  mortgage  payable  in  six  and  twelve  months 
to  secure  the  balance.     The  conveyance  was  not  executed, 


'  McLaughlin  v.  Shields,  12  Pa.  St.,  283.  -  McClartey  v.  Gokey,  31  Iowa,  505. 
^  De  Camp  v.  Feay,  5  Serg.  &  R.,  323  ;  Edgerton  v.  Peckham,  1 1  Paige  Ch.,  352. 
*  Vernon  v.  Stephens,  2  P.  Wms.,  66  ;  Clark  v.  Lyons,  25  111.,  105. 


§  468.  EFFECT  OF  POSSESSION  ON  RIGHTS  OF  PARTY.  647 

nor  the  second  instalment  paid,  payment  having  been  sus- 
pended with  the  understanding  that  the  interest  should  be 
paid  instead.  Meanwhile,  A.  having  erected  buildings  on 
the  lot,  but  neglected  to  make  further  payments,  was,  three 
years  afterward,  ejected  by  B.,  and  two  years  subsequent  to 
his  ejectment  he  brought  a  suit  for  specific  performance. 
It  was  held  that  A.'s  equity  was  not  extinguished  by  lapse 
of  time,  but  that  the  parties  might  be  deemed  to  sustain 
the  relation  of  mortgagor  and  mortgagee.'  The  rule,  how- 
ever, that  the  interest  is  regarded  as  an  equivalent  for  the 
non-payment  of  the  purchase  money  at  the  time  agreed,  is 
not  operative  unless  it  is  certain  that  the  vendor  has  sus- 
tained no  damage  by  the  default  of  the  vendee,  and  that 
the  payment  of  the  principal  with  the  interest  will  place 
him  in  the  position  he  would  have  occupied  had  there  been 
no  default.  In  every  such  case,  the  burthen  of  proof  is  on 
the  vendee  to  account,  in  a  reasonable  manner,  for  his  de- 
lay and  to  show  that  the  relief  he  asks  is  just  and  equitable.* 
§  468.  Effect  of  possession  on  rights  of  party. — Posses- 
sion of  land  by  a  party  under  a  contract  of  sale,  especially 
if  followed  by  improvements  or  by  a  material  change  in  the 
condition  of  the  property,  will  be  deemed  by  the  court  a 
circumstance  of  very  considerable  weight  in  a  suit  for  spe- 
cific performance,  where  there  has  been  delay  in  fulfilment 
on  either  side.'     In  July,  1857,  B.,  being  in  possession  of 

'  Longvvorth  v.  Taylor,  i  McLean,  395. 

-  Taylor  v.  LongAvorth,  14  Peters,  172  ;  Booten  v.  Scheffer,  21  Gratt.,  474. 

^  Crofton  V.  Ormsby,  2  Sch.  &  Lef.,  604;  Farley  v.  Vaughn,  11  Cal.,  227. 
Possession  by  the  purchaser,  to  excuse  his  delay  in  performing,  must  be  a  pos- 
session under  the  contract,  and  such  that  the  vendor  must  know,  or  be  taken  to 
know,  that  the  purchaser  claims  to  be  in  possession  under  the  contract.  Mills 
V.  Haywood,  L.  R.  6,  Ch.  D.  196.  Where,  in  a  suit  for  specific  performance  of 
a  contract  for  the  exchange  of  lands,  it  appeared  that  no  money  was  to  be  paid, 
and  that  possession  was  taken  pursuant  to  the  contract,  it  was  held  that  a  delay 
of  ten  years  was  not  a  bar.  Stretch  v.  Schenck,  23  Ind.,  1"].  When  a  party 
has  possession  under  a  contract  for  a  lease,  pays  his  rent,  and  is  in  the  enjoy- 
ment of  all  the  benefits  of  the  contract,  delay  will  not  be  a  ground  for  resisting 
performance.  Clarke  v.  Moore,  i  J.  &  L.,  723;  Sharp  v.  Milligan,  22  Beav., 
606.  Where,  under  a  contract  for  the  lease  of  a  shop  and  the  sale  of  the  stock, 
the  intended  lessee  had  been  put  in  possession,  had  paid  for  the  stock  and  also 
the  rent,  and  the  other  party  refused  to  execute  the  lease,  considerable  delay  by 
the  lessee  after  the  lessor's  refusal  was  held  no  ground  for  withholding  specific 
performance,  which,  however,  was  granted  without  costs.  Burke  v.  Smyth,  3  J. 
&  L.,  193.     And  see  Ridgway  v.  Wharton,  6  House  of  Lds.,  292. 


648  LAPSE    OF    TIME.  §  468. 

real  estate  as  the  assignee  of  a  lease,  entered  into  an  agree- 
ment with  A.  to  accept  from  him  a  new  lease,  and  pay  six 
hundred  pounds  on  the  ist  of  August  thereafter,  the  day- 
fixed  for  completion,  with  interest  if  the  lease  should  not 
be  completed  on  the  day  named.  A  draft  lease  was  sent 
to  B.  for  his  approval,  which  w^as  not  returned,  and  nothing 
was  done  by  A.  toward  insisting  on  completion.  B.  re- 
mained in  possession  and  paid  rent,  but  the  six  hundred 
pounds  and  interest  were  never  paid  or  demanded.  A. 
died  in  1 87 1.  In  a  suit  by  A.'s  executor,  it  was  held  that 
as  B.'s  possession  and  payment  of  rent  must  be  referred  to 
the  new  agreement,  and  not  to  a  holding  over  after  the  ex- 
piration of  the  former  lease,  the  lapse  of  time  did  not 
operate  as  a  bar  to  specific  performance,  w^hich  was  accord- 
ingly decreed,  wath  interest  on  the  six  hundred  pounds  from 
the  I  St  of  August,  1857.'  In  a  suit  brought  by  the  execu- 
tor of  the  vendor  for  specific  performance,  it  appeared  that 
the  vendee  under  his  purchase  took  the  contract  of  a  tenant 
who  was  in  possession,  and,  acting  upon  this  right,  cut  tim- 
ber largely  for  himself,  directed  the  tenant  w^here  and  what 
fire-wood  to  cut,  excused  the  tenant  from  liming  the  land 
extensively  as  he  was  bound  to  do  by  the  lease,  and  that 
the  want  of  ability  of  the  executor  to  make  title  by  the 
day  appointed,  was  owing  to  a  mistake  of  his  authority  as 
to  the  mode  of  executing  the  power  of  sale  ;  that  the  ven- 
dee, when  he  discovered  this,  suddenly  notified  the  execu- 
tor that  he  rescinded  the  purchase  on  the  same  day,  without 
allowing  the  executor  a  reasonable  time  to  correct  the  error, 
and  without  paying  or  tendering  payment  for  the  damage 
he  had  done,  or  manifesting  any  intention  to  repair  the 
mischief.  The  decree  of  the  court  below  in  favor  of  the 
plaintiff  was  afhrmed  with  costs.'  Where  the  vendee  is  in 
possession,  and  the  vendor,  without  any  fault  on  his  part, 
has  omitted,  or  from  the  state  of  the  title  has  been  unable, 

'  Shepheard  v.  Walker,  L.  R.  20,  Eq.  659. 

"  Bell's  Appeal,  71  Pa.  St.,  465.     See  Larison  v.  Burt,  4  Watts  &  Serg.,  27. 


§  468.  EFFECT  OF  POSSESSION  ON  RIGHTS  OF  PARTY.  649 

to  execute  a  conveyance,  time  is  not  usually  essential,  and 
if  a  good  title  can  be  made  in  a  reasonable  time,  the  pur- 
chaser will  be  compelled  to  accept  it.'  In  an  early  case  in 
New  York  it  was  shown  that  the  plaintiff  covenanted  that 
he  would  convey  to  the  defendant  certain  premises  on  or 
before  the  ist  of  June,  1820,  with  a  stipulation  that  the 
defendant  might  enter  into  immediate  possession,  which  he 
accordingly  did.  At  this  time  there  was  a  mortgage  on 
the  premises,  which  remained  until  shortly  previous  to  the 
filing  of  the  bill  in  March,  182 1,  so  that  the  plaintiff  could 
not  execute  a  conveyance  giving  a  clear  title  at  the  time 
agreed.  The  chancellor  having  dismissed  the  bill,  the  court 
of  errors  reversed  his  decision,  and  directed  that  a  master 
inquire  whether  the  plaintiff  could  give  a  good  title  to  the 
premises  which  he  had  agreed  to  convey,  and  if  it  were  as- 
certained that  he  could,  that  a  decree  for  the  specific  per- 
formance of  the  contract  should  be  rendered.'  In  a  suit 
by  a  vendor  for  the  specific  performance  of  the  contract  of 
purchase,  it  appeared  that  the  vendee  paid  part  of  the  pur- 
chase money,  went  into  possession,  and  built  on  the  land, 
but  did  not  make  all  the  improvements  he  desired  in  con- 
sequence of  a  pending  suit  brought  by  a  third  person  to 
recover  the  land.  This  suit  was  not  decided  for  a  long 
time,  so  that  the  vendor  could  not  give  his  vendee  a  title  ; 
but  the  suit  was  ultimately  decided  against  the  claimant. 
It  was  held  that,  upon  the  vendor  giving  the  purchaser  a 
good  title  with  general  warranty,  the  vendor  was  entitled 
to  a  decree  ;  but  that  interest  could  not  be  allowed  on  the 
balance  of  the  purchase  money,  except  from  the  date  of 
the  verdict  establishing  the  title.'  In  the  foregoing  we 
have  considered  the  effect  of  possession  on  the  rights  of 
the  vendor.  Similar  considerations  of  course  apply  to  the 
vendee  when  he  is  plaintiff.*     A  person  took  possession  of 

'  Craig  V.  Martin,  3  J.  J.  Marsh,  50.        *  Seymour  v.  Delancey,  3  Covven,  445. 
^  Wi^htman  v.  Reside,  2  Dessaus  Eq.,  578. 

*  See  Mason  v.  Wallace,  4  McLean,  77  ;  Taylor  v.   Longworth,  14  Pet.,  172; 
Armstrong  v.  Pierson,  5  Iowa,  317.     Where  the  answer  to  a  bill  admitted  that 


650  LAPSE    OF   TIME.  §  468. 

land  under  a  verbal  contract  of  purchase,  and,  with  the  per- 
mission of  the  owner,  occupied  and  improved  the  same  for 
a  number  of  years,  under  the  impression  that  he  might  pay 
for  it  when  demanded  ;  and  the  purchaser  offered  to  pay 
when  notified  to  do  so.  It  was  held  that  he  was  entitled  to 
specific  performance  of  the  contract.'  A.  contracted  to 
convey  to  B.  a  portion  of  a  certain  survey,  and  B.  took 
and  held  possession  for  thirty-eight  years.  A.  died  without 
having  conveyed  his  right  to  B.,  or  himself  obtaining  title ; 
but  his  devisee  received  a  grant  of  the  whole  survey.  It 
was  held  that  the  lapse  of  time  was  not  a  bar  to  a  bill  by  B. 
against  the  devisee  for  specific  performance."  Where  a 
deed  was  not  demanded  until  twenty-three  years  after  the 
signing  of  the  contract,  but  the  purchaser,  a  toll-bridge 
company,  had  been  in  possession  of  the  land  during  all  that 
time,  and  laid  out  their  road  thereon,  and  there  had  been  no 
change  in  the  circumstances  of  the  parties,  but  a  convey- 
ance had  not  been  called  for  from  a  belief  that  the  contract 
was  sufficient,  it  was  held  that  the  company  was  entitled  to 
specific  performance.'  In  a  suit  by  A.  against  B.  for  the 
specific  performance  of  the  contract  for  the  sale  of  a  farm, 
it  appeared  that  B.,  having  bid  off  the  farm  and  a  quantity 
of  personal  property  at  a  mortgage  sale,  verbally  agreed  to 
allow  A.  to  remain  in  possession  of  the  farm  by  paying  the 
interest  on  the  auction  price  of  the  same,  and  ultimately 
redeeming  the  property ;  that,  subsequently,  the  parties  en- 
tered into  a  written  contract  by  which  B.  leased  the  farm 
and  personal  property  to  A.  for  one  year  at  a  rent  equiva- 
lent to  the  interest  on  the  sums  at  which  B.  bid  off  the 
same,  and  also  agreed  that  in  case  A.  should,  "  at  any  rea- 

a  deed  for  land,  absolute  on  its  face,  had  been  made  as  charged  in  the  bill,  upon 
a  parol  trust  that  such  deed  should  be  security  for  the  payment  of  a  sum  of 
money,  but  relied  upon  a  lapse  of  ten  years  as  a  defence,  it  was  held  that  as  the 
complainant  had  been  in  possession  of  the  land  all  the  time,  the  defence  was 
not  good.  Price  v.  Gaskins,  Phil.  (N.  C.)  Eq.,  224.  See  Waters  v.  Travis,  9 
Johns,  450. 

'  Ingersoll  v.  Horton,  7  Mich.,  405.  "^  Williams  v.  Lewis,.  5  Leigh,  686. 

^  New  Barbadoes  Toll-Bridge  Co.  v.  Vreeland,  3  Green  Ch.,  157. 


§  4^8.  EFFECT  OF  POSSESSION  ON  RIGHTS  OF  PARTY.         65  I 

sellable  time,"  pay  to  B.  or  secure  to  him  the  principal  and 
interest  he  had  paid  on  the  property,  he  would  convey  the 
property  to  A.  It  further  appeared  that  A.  had  continued 
in  possession  of  the  property,  paying  the  stipulated  interest, 
several  years.  Counsel  for  B.  contended  that  the  reason- 
able time  within  which  A.  had  a  right  to  pay  for  or  secure 
the  payment  of  the  purchase  price  of  the  property  and 
have  a  conveyance  expired  with  the  current  year  after  the 
date  of  the  contract.  The  court,  however,  in  granting  the 
prayer  of  the  bill,  held  that  the  rights  of  the  parties  were 
to  be  adjudged  as  though  a  new  agreement,  with  the  clause 
concerning  the  sale  of  the  property,  had  been  made  each 
year,  or  at  the  expiration  of  the  period  covered  by  the  pre- 
ceding one ;  especially  as  B.  had  stood  by  and  seen  the 
farm  rendered  more  valuable  by  permanent  improvements, 
without  interposing  any  claim  that  the  condition  conferring 
on  A.  the  right  to  purchase  had  become  forfeited.'  Where 
land  was  sold  to  be  paid  for  at  the  expiration  of  seven  years, 
the  vendee  to  pay  the  interest  annually,  and  also  the  taxes, 
and  it  was  subsequently  agreed  that  the  interest  should  be 
compounded,  and  no  part  be  paid  until  the  principal  be- 
came due,  and  the  vendee  took  possession  and  made  valu- 
able improvements  on  the  property  with  the  vendor's 
knowledge,  it  was  held  that,  upon  default  of  payment  at 
the  expiration  of  the  term  of  credit,  the  vendor  could 
not  rescind  the  contract  as  against  judgment  creditors 
of  the  vendee.'     The  fact   that  the  instrument    is  in  the 

'  Bellinger  v.  Kitts,  6  Barb.,  273. 

"^  Brock  V.  Hidy,  13  Ohio  St.,  306.  In  this  case,  a  decree  was  entered  order- 
ing that  "  the  cause  be  remanded  to  the  court  of  common  pleas,  to  take  an  ac- 
count of  the  amount  due  to  the  defendant  Hidy  for  purchase  money,  annual  in- 
terest, and  taxes  paid  by  him,  with  interest  thereon,  deducting  therefrom  the  net 
rents,  issues,  and  profits  of  the  premises  during  the  time  he  has  had  possession 
of  the  same  ;  that  the  premises  be  appraised,  advertised,  and  sold  as  upon  exe- 
cution at  law  ;  that,  out  of  the  proceeds  of  such  sale,  Hidy  be  paid  the  amount 
due  to  him,  and  that  the  balance,  after  the  payment  of  the  costs  herein,  be  ap- 
propriated to  the  payment  of  the  judgments  of  attaching  creditors  ;  provided 
that  unless  the  same  shall,  within  six  months  from  the  entering  of  an  order  set- 
tling the  amount  due  to  the  said  Hidy,  be  sold  for  a  sum  sufficient  to  pay  the 
same  together  with  the  costs  herein,  or  unless  the  plaintiffs  shall  bring  such  sum 
into  court  for  the  use  of  the  said  Hidy,  and  the  payment  of  such  costs,  then  the 


652  LAPSE    OF    TIME.  <5  469. 

ordinary  form  of  a  bond  with  a  clause  that  in  case  of  a 
breach  of  the  condition  it  shall  be  void,  otherwise  remain 
in  full  force,  does  not  necessarily  make  time  of  the  essence 
of  the  contract.  But  the  circumstance  that  the  obligee, 
with  the  knowledo-e  and  consent  of  the  obliofor,  has  entered 
upon  and  occupied  the  premises,  and  made  improvements 
thereon,  is  ordinarily  decisive  to  entitle  him  to  the  favor- 
able interposition  of  a  court  of  equity  when  it  does  not 
appear  that  there  has  been  any  other  change  in  the  value  of 
the  land,  where  time  was  not  originally  of  the  essence  of 
the  contract,  has  not  been  made  so  by  notice,  and  he  has 
not  been  guilty  of  laches  in  applying  for  relief.' 

§  469.  Delay  constitiLtiiig  a  defence. — No  general  rule 
can  be  laid  down  as  to  what  will  constitute  a  stale  equity. 
This  must  depend  upon  the  facts  and  circumstances  of  each 
case."  In  an  early  case,  a  delay  of  fourteen  months  was 
held  not  to  have  such  an  effect.'  So,  where  there  was  a 
delay  of  more  than  fourteen  months  before  the  complain- 
ant offered  to  pay  the  full  amount  due,  the  court  considered 
the  extent  of  the  delay,  what  had  been  paid,  the  conduct 
and  motives  of  the  parties,  and  all  the  circumstances  which 
might  have  justified  or  excused  the  remissness,  and  decreed 
in  his  favor."  In  another  case,  the  plaintiff  having  made 
improvements  on  the  land  to  be  conveyed  to  him,  the  court 
overruled  a  demurrer  to  the  bill,  though  several  years  had 
elapsed   after   the  contract   before  the  suit  was  brought* 

petition  herein  be  dismissed  at  tlie  costs  of  the  plaintiffs."  Where  a  person 
makes  another  an  offer  to  sell  him  land  upon  the  performance  of  certain  condi- 
tions, and  the  latter  enters  upon,  commences  to  improve  the  land,  and  does  all 
that  he  was  required  to  do,  it  is  too  late  for  the  person  making  the  offer  to 
recede.     Perkins  v.  Hadsell,  50  111.,  216. 

'  Barnard  v.  Lee,  97  Mass.,  92. 

-  Paschell  v.  Hinderer,  28  Ohio  St.,  568.  B.  took  the  transfer  of  a  land  certifi- 
cate to  hold  one-half  in  trust  for  A.  in  accordance  with  an  agreemsnt  between 
A.  and  B.  Four  years  after  B.  acknowledged  the  trust,  the  administrator  of  B. 
sold  the  land  ;  and  three  months  after  such  sale,  and  before  the  payment  of  the 
purchase  money,  A.  brought  a  suit  to  enforce  the  trust.  It  was  held  that  the 
claim  could  not  be  regarded  as  stale.     Hodges  v.  Johnson,  15  Texas,  570. 

^  Marquis  of  Hertford  v.  Boore,  5  Ves.,  719. 

■*  Glover  v.  Fisher,  11  III.,  666.  '  Laverty  v.  Hall,  19  Iowa,  526. 


§  ^6g.  DELAY  CONSTITUTING  A  DEFENCE.  653 

On  the  other  hand,  a  delay  for  the  following  periods  was 
considered  fatal :  three  years  and  a  half ; '  a  year,  seven 
months  and  thirteen  days  ;''  a  year  and  nine  months."  De- 
lay by  a  purchaser  to  decide  whether  or  not  he  will  accept 
the  title,  is  unjust  to  the  vendor,  because  the  former  can 
insist  on  performance,  whatever  the  title,  while  the  latter 
cannot  enforce  the  contract  unless  he  has  a  good  title.* 
While,  however,  a  purchaser  will  not  be  permitted  to  lie  by 
and  not  perform  until  he  ascertains  that  the  contract  is  one 
of  profit,  and  then  call  for  a  conveyance,  so  neither  will  the 
vendor  be  permitted  unwarrantably  to  delay  the  convey- 
ance, and  urge  the  rise  in  the  value  in  the  meantime,  as  a 
valid  reason  why  he  should  be  absolved  from  his  contract.* 
A.  and  B.  agreed  that  B.'s  judgments  against  A.  should  be 
paid  in  land  at  a  value  to  be  fixed  by  three  persons  named. 
A.  having  prevented  the  immediate  carrying  out  of  the 
agreement  in  order  that  the  land  might  rise  in  value,  it  was 
held  that  he  was  not  entitled  to  a  decree  for  specific  per- 
formance.' Either  party,  when  calling  for  performance 
after  a  great  lapse  of  'time,  must  satisfy  the  court  that  he 
did  not  wait  to  take  advantage  of  fortuitous  circumstances  ; 
but  that  during  the  whole  period,  he  intended  to  fulfil.'' 
Where  the  parties  differed  as  to  the  construction  of  the 
agreement,  a  bill  for  specific  performance  filed  by  one  of 
them  after  a  delay  of  seven  years,  was  dismissed  on  account 
of  the  staleness  of  the  demand." 

'  Eads  V.  Williams,  4  De  G.  M.  &  G.,  674. 

^  Southcomb  v.  Bishop  of  Exeter,  6  Hare,  213. 

^  Lord  James  Stuart  v.  London  &  Northwestern  R.R.  Co.,  i  De  G.  M.  &  G., 
721.  And  see  Harrington  v.  Wheeler,  4  Ves.,  686  ;  Guest  v.  Homfray,  5  lb., 
818;  Thomas  v.  Blackman,  i  Coll.  C.  C,  313. 

*  Spurrier  v.  Hancock,  4  Ves.,  667 ;  McClure  v.  Purcell,  3  A.  K.  Marsh,  61. 

^Low  V.  Treadwell,  12  Me.,  441.      See   McClintock  v.   Laing,  22  Mich.,  212. 

^  Pillow  V.  Pillow,  3  Humph.,  644. 

^Tiernan  v.  Roland,  15  Pa.  St.,  429.  Where  a  contract  for  the  sale  of  land 
was  wholly  executory,  and  a  time  fixed  for  payment  of  the  purchase  money, 
with  an  express  condition  of  forfeiture  if  not  paid  at  that  time,  and  the  pur- 
chaser did  nothing  to  fulfil  on  his  part,  but  waited  several  years  after  payments 
were  due,  and  until  there  was  a  rise  in  value,  and  then  brought  suit,  it  was  held 
that  he  was  not  entitled  to  a  decree  for  specific  performance.  O 'Fallon  v.  Ken- 
nerly,  45  Mo.,  124. 

'  Milward  v.  Earl  of  Thanet,  5  Ves.,  720. 


■654  LAPSE    OF    TIME.  §  47O. 

§470.  Value  of  property  chaiigi7ig.  —  Although  when 
time  is  not  of  the  essence  of  the  contract,  and  the  defend- 
ant has  sustained  no  loss  by  a  delay  on  the  part  of  the 
plaintiff,  specific  performance  will  be  decreed;'  yet,  when 
the  circumstances  are  so  changed  that  the  defendant  can- 
not be  placed  in  the  situation  which  he  would  have  occu- 
pied if  the  contract  had  been  carried  out,  the  parties  will 
be  left  to  their  remedy  at  law."  On  a  bill  filed  by  a  rail- 
road company  to  enforce  a  contract  to  convey  land  three 
years  after  the  vendor  had  refused  to  fulfil,  and  after  the 
company  had  located  their  road  over  a  portion  of  the  land 
only,  which  in  the  meantime  had  risen  in  value,  a  decree 
for  specific  performance  was  refused.'  The  plaintiff,  hav- 
ing contracted  with  the  defendant  for  the  purchase  of  land, 
became  insolvent  and  unable  to  fulfil,  and,  more  than  five 
years  after  the  last  payment  had  become  due,  the  land  sud- 
denly rose  in  value  from  twenty-two  dollars  and  a  half  per 
acre,  the  price  agreed  to  be  paid,  to  eighty  dollars  per  acre. 
The  vendee  then  tendered  the  purchase  money  and  de- 
manded a  deed,  which  was  refused.  A  bill  for  specific  per- 
formance was  thereupon  filed  by  him,  which  was  dismissed 
by  the  U.  S.  circuit  court,  and  the  decree  affirmed  by  the 
U.  S.  supreme  court.*  In  February,  1867,  a  contract  was 
made  for  the  sale  of  land  for  the  sum  of  fifty-two  thousand 
dollars,  one-third  to   be   paid   in  hand,  and  the  balance  in 

'  Townsend  v.  Lewis,  35  Pa.  St.,  125  ;  Sharp  v.  Trimmer,  24  N.  J.  Eq.,  422. 
As  where  the  vendee  took  possession  by  mutual  consent,  delivery  of  the  deed 
being  postponed  to  a  future  day,  its  prompt  delivery  having  been  prevented  by  a 
disagreement  as  to  the  terms  of  payment,  and  a  deed  subsequently  tendered  on 
the  original  terms.     Ibid. 

"^  McKay  v.  Carrington,  i  McLean,  50  ;  Demarest  v.  McKee,  2  Grant  Pa.  Cas., 
248;  Callen  v.  Ferguson,  29  Pa.  St.,  247  ;  Pickering  v.  Pickering,  38  N.  H.,  400; 
Peters  v.  Delaplaine,  49  N.  Y.,  362  ;  Hubbell  v.  Van  Schoening,  lb.,  326  ;  Ruck- 
man  V.  King,  19  N.  J.  Eq.,  360;  Johns  v.  Norris,  22  lb.,  102.  After  a  delay  of 
seven  years  a  decree  for  specific  performance  was  refused,  notwithstanding  the 
plaintiff  had  expended  a  large  sum,  and  default  was  first  committed  by  the  de- 
fendant, which  probably  prevented  fulfilment  by  the  plaintiff,  where,  owing  to  a 
change  of  circumstances,  neither  party  could  derive  the  full  benefit  of  the  con- 
tract if  it  were  enforced.  Pratt  v.  Carroll,  8  Cranch,  471.  See  Norris  v.  Knox, 
I  Pittsb.,  56. 

^Boston,  etc.,  R.R.  Co.  v.  Bartlett,  10  Gray,  384. 
*  Brashier  v.  Gratz,  6  Wheat.,  528. 


§  470.  VALUE  OF  PROPERTY  CHANGING.  655 

two  equal  annual  instalments,  with  interest.  The  purchaser 
paid  only  five  hundred  dollars  down,  and  did  not  offer  to 
pay  either  instalment  when  due.  A  bill  for  specific  per- 
formance having  been  filed  by  him  in  July,  1873,  after  the 
-property  had  greatly  risen  in  value,  it  was  held  that  the  de- 
lay was  fatal."  There  is  no  instance  in  which  the  delay  has 
been  unreasonable,  and  without  sufficient  excuse,  and  the 
property  has  greatly  fallen  in  value,  a  court  has  decreed 
specific  performance.  Under  such  circumstances,  it  would 
not  be  in  the  power  of  the  court  to  place  the  parties  in  the 
condition  they  would  have  been  had  the  contract  been  per- 
formed ;  and  this  is  a  sufficient  reason  why  a  court  of 
equity  will  refuse  to  enforce  the  contract."  Where  the 
vendor  of  an  unfinished  house  agreed  to  complete  it  in 
three  months,  but  did  not  do  so  until  after  eleven  months, 
and  the  house  had  in  the  meantime  greatly  declined  in 
value,  the  court  refused  to  decree  specific  performance.'  A 
vendee,  who  had  made  a  deposit  on  his  purchase,  was  al- 
lowed to  withdraw  it  and  abandon  the  purchase,  because 
the  vendor  had  neglected  to  give  him  an  abstract  of  title 
for  more  than  seven  months,  and  in  the  meantime  there 
had  been  a  material  depreciation  in  the  value  of  the  prop- 
erty.* Where  the  title  of  the  vendor  to  one-sixth  of  the 
property  sold  was  doubtful,  for  the  reason  that  no  deed  of 
it  to  him  could  be  found,  though  such  a  conveyance  was  in 
fact  on  record  in  the  clerk's  office,  and  had  eluded  search 
because  it  had  not  been  indexed,  and,  before  the  deed  was 
found,  the  property  had  greatly  depreciated  in  value,  it  was 
held  that  the  purchaser  would  not  be  compelled  to  take  it.' 
In  an  early  case  in  New  York,  where  land  was  sold  under 
a  decree  in  a  partition  suit,  and  the  title  was  not  perfected 


'  Roby  V.  Cossitt,  78  III,  638. 

'  Cooper  V.  Brown,  2  McLean,  495.     See  Reddish  v.  Miller,  27  N.  J.  Eq.,  514. 
^  Colcock  V.  Butler,  i  Dessaus  Eq.,  307. 

*  Lloyd  V.  CoUett,  4  Bro,  C.  C,  469.     And  see  Fordyce  v.  Ford,  lb.,  494  ;  Se- 
ton  V.  Slade,  7  Yes.,  265. 

'Griffin  v.  Cunningham,  19  Gratt.,  571. 


656  LAPSE    OF    TIME.  §  471- 

until  ten  months  thereafter,  the  land  having  meanwhile 
materially  depreciated  in  value,  it  was  held  that  the  pur- 
chaser was  discharged  from  the  contract  by  the  delay.' 

§  471.  Excuse  for  delay. — Even  where  time  is  not  of 
the  essence  of  the  contract,  if  relief  is  sought  in  equity  by 
one  who  has  not  complied  with  the  strict  terms  of  his  con- 
tract, he  must  make  out  a  case  free  from  doubt,  show  that 
the  relief  asked  for  is  equitable,  and  account  in  a  reason- 
able manner  for  his  delay,  and  apparent  omission  of  duty.' 
When  a  party  has  failed  to  perform  his  part  of  the  contract 
without  a  sufficient  excuse,  and  there  has  been  no  acquies- 
cence in  the  delay  by  the  other  party,  the  court  will  not  in 
general  decree  specific  performance;'  and  the  defendant 
need  not  show  that  he  has  sustained  any  special  injury  or 
inconvenience.'  A  vendor  who  brought  a  suit  for  specific 
performance  three  years  and  a  half  after  the  time  fixed  for 
fulfilment,  without  having  given  notice  in  the  interim  of 
his  intention  to  insist  on  the  enforcement  of  the  contract, 
or  excusing  the  delay,  w^as  held  not  entitled  to  a  decree.' 
But  a  delay  by  the  administrator  of  the  vendor,  before 
filing  a  bill  for  specific  performance,  of  two  and  a  half 
months  after  taking  out  letters  of  administration,  which 
is  on  the  day  the  deed  was  to  have  been  delivered,  will  not 
be  a  bar  to  the  maintenance  of  the  suit."  A.  sold  land  to 
B.  and  agreed  to  execute  a  conveyance  upon  the  payment 
of  a  second  instalment.     Before  the  time  for  conveyance 


'  Jackson  v.  Edwards,  22  Wend.,  498. 

-Cleveland  v.  Burton,  11  Vt.,  138;  Goodell  v.  Field,  15  lb.,  448  ;  Young  v. 
Daniels,  2  Iowa,  126  ;  Lewis  v.  Woods,  4  How.  Miss.,  86.  The  rule  that  where 
the  delay  or  neglect  has  been  without  just  excuse,  and  there  is  no  longer  a  pre- 
vailing and  decisive  equity  to  sustain  his  claim,  the  party  will  be  left  to  his  rem- 
edy at  law,  is  true  not  only  as  to  agreements  generally,  but  applies  to  awards 
founded  on  agreements ;  for  equity  interferes  in  respect  to  awards  only  as  grow- 
ing out  of  agreements.    McNeil  v.  Magee,  5  Mason,  244. 

"'  Boyd  V.  Schlessinger,  49  N.  Y.,  301  ;  Craig  v.  Leiper,  2  Yerg.,  193  ;  Beach  v. 
Dyer,  93  III.,  295. 

^  Benedict  v.  Lynch,  i  Johns  Ch.,  370 ;  Bowles  \'.  Woodson,  6  Gratt.,  78. 
But  it  is  otherwise  if  the  delay  be  excused  and  time  was  not  essential.  Morgan 
v.  Bergen,  3  Neb.,  209. 

'  Delavan  v.  Duncan,  49  N.  Y.,  485.         °  Miller  v.  Miller,  25  N.  J.  Eq.,  354. 


§  471'  EXCUSE    FOR    DELAY.  657 

A.  became  insane  and  died,  leaving  a  widow  and  infant 
heirs,  and  a  deed  was  made  under  an  order  of  court.  Upon 
a  bill  for  specific  performance,  filed  by  the  administrator 
and  heirs,  it  was  held  that  the  fact  that  the  complainants 
had  not  conveyed,  was  no  objection  to  the  suit'  Vendees 
in  possession,  who  were  to  pay  for  the  land  by  instalments, 
paid  the  last  instalment  to  the  administrator  of  the  vendor, 
and  then  brought  an  action  at  law  to  recover  back  the  pur- 
chase money  for  a  breach  of  the  covenant  to  convey.  The 
heirs  of  the  vendor  having  filed  a  bill  to  enjoin  the  judg- 
ment and  for  specific  performance,  it  was  held  that,  as 
there  was  no  fault  on  the  part  of  the  vendor  during  his 
life,  and  the  heirs  being  infants  at  the  rendering  of  the 
judgment,  were  incapable  of  conveying,  and  the  vendees 
had  sustained  no  injury,  the  heirs  were  entitled  to  a  de- 
cree." When  the  alleged  failure  is  on  the  part  of  the  ven- 
dee, and  the  court,  having  regard  to  the  substance  of  the 
contract,  finds  that"  the  delay  of  payment  has  not  operated 
injuriously  to  the  vendor,  that  the  condition  of  the  parties 
is  the  same  it  v/as  when  the  payment  should  have  been 
made,  and  that  the  same  justice  can  be  done  under  the  cir- 
cumstances as  if  the  payment  had  been  made  at  the  tim6 
stipulated,  the  court  will  not  refuse  its  aid ;  especially  if 
there  is  a  reasonable  excuse  for  the  default.'  Where  the 
vendee  had  made  a  large  payment,  and  expended  several 
hundred  dollars  in  improvements,  but  was  prevented  from 
completing  by  pecuniary  embarrassments,  and  compensa- 
tion for  the  delay  had  been  tendered  by  the  original  pur- 
chaser's assignee,  it  was  held  that  the  latter  was  entitled  to 
specific  performance."     A  purchaser   refused  to  accept  a 

>  Boyce  v.  Prichett,  6  Dana,  231,  ^  Nesbit  v.  Moore,  9  B.  Mon.,  508. 

^  Longworth  v.  Taylor,  i  McLean,  395;  Morgan  v.  Scott,  26  Pa.  St.,  51; 
Trimble  v.  Elliott,  Wright,  310;  Farris  v.  Bennett,  26  Texas,  568;  Galloway  v. 
Barr,  12  Ohio,  354;  Spaulding  v.  Alexander,  6  Bush,Ky.,  160;  Williston  v.  Wil- 
liston,  41  Barb.,  635;  Hubbell  v.  Van  Schoening,  49  N.  Y.,  326  ;  Pennock  v. 
Ela,  41  N.  H.,  191  ;  Barnard  v.  Lee,  97  Mass.,  92.  If  a  complainant  has  been 
in  no  default,  and  has  attempted  to  enforce  his  contract,  a  great  lapse  of  time 
will  not  bar  a  bill  for  specific  performance.    Coulson  v.  Walton,  9  Pet,,  62. 

*  Ewins  V.  Gordon,  49  N.  H.,  444. 
42 


658  LAPSE    OF    TIME.  §  472. 

deed  and  comply  with  the  contract  on  his  part,  for  the  rea- 
sons that  there  was  a  judgment  of  record  against  a  former 
owner,  which  was  in  fact  satisfied,  but  the  satisfaction  was 
not  entered  of  record,  and  a  third  person  was  in  possession 
of  part  of  the  land  as  a  mere  squatter.  It  was  held  that  if 
the  objections  were  well  founded,  and  urged  in  good  faith, 
the  delay  was  excusable.'  Where  the  holder  of  a  bond  for 
the  conveyance  of  land  gave  it  up,  and  received  a  deed 
from  one  who  had  no  title  to  the  land,  and,  after  a  lapse  of 
twenty  years,  filed  a  bill  for  specific  performance,  it  was 
held  that  equity  would  revive  and  enforce  the  bond  against 
the  proper  parties.'' 

§  472.  Time  consumed  in  treaty. — Delay  pending  a  ne- 
gotiation between  the  parties  will  not  bar  relief,  even 
though  the  treaty  be  conducted  without  prejudice  to  a  no- 
tice given  by  one  party  that  he  considers  the  contract  re- 
scinded.' But  it  is  otherwise,  when  the  negotiation  con- 
cerns a  matter  which  is  not  the  cause  of  the  delay.  Thus, 
where  disputes  arose  as  to  the  title  and  a  valuation  incident 
to  the  purchase,  and  the  want  of  means  of  the  purchaser, 
and  not  the  disputes,  was  the  cause  of  delay,  specific  per- 
formance was  refused  at  the  suit  of  the  purchaser.'  When 
the  delay  has  been  occasioned  by  the  defendant,  he  cannot 
avail  himself  of  it  as  a  defence."  So,  w^here  a  party  creates 
delay  by  raising  an  unfounded  objection,  he  cannot  make 
the  delay  a  ground  for  refusing  to  perform  the  contract." 
Remaining  in  possession,  if  under  an  arrangement  to  that 
end,  will  not  affect  the  question  of  laches.'  So,  the  fact 
that  the  purchaser  has  permitted  the  deposit  to  remain  in 
the  hands  of  the  vendor  from  the  time  he  considered  the 

'  Hoyt  V.  Tuxbury,  70  111.,  331.  ''Buck  v.  Holloway,  2  J.  J.  Marsh,  163. 

3  Southcomb  v.  Bishop  of  Exeter,  6  Hare,  213. 

*  Gee  V.  Pearse,  2  De  G.  &  S.,  325. 

^  Morse  v.  Merest,  6  Mad.,  36  ;  Shrewsbury  &  Brighton  R.R.  Co.  v.  London 
&  Northwestern  R.R.  Co.,  2  M'N.  &  G.,  324,  355  ;  RidgAvay  v.  Wharton,  6 
House  of  Lds.,  292. 

°  Monro  v.  Taylor,  3  M'N.  &  G.,  713,  723. 

'  Southcomb  v.  Bishop  of  Exeter,  supra. 


§  473-         CONSEQUENCES  OF  LONG  DELAY  IN  GENERAL.  659 

contract  rescinded,  until  the  commencement  of  the  suit,  has 
been  held  not  to  affect  such  question/ 

§  473.  Consequences  of  long  delay  in  general. — Although, 
as  a  rule,  it  is  not  competent  for  one  of  the  parties  to  put 
an  end  to  or  rescind  a  contract  without  the  assent  of  the 
other,  yet  an  unjustifiable  default  is  equivalent  to  an  assent 
to  a  rescission  of  the  contract,  and  will  be  so  regarded,  un- 
less acquiesced  in  by  the  other  party.'  The  doctrine  is  well 
settled,  that  great  delay  of  either  party  unexplained,  in 
performing  the  contract,  or  when  he  claims  specific  per- 
formance in  filing  his  bill,  or  in  prosecuting  his  suit  after 
the  bill  is  filed,  constitutes  such  laches  as  to  forbid  the  in- 
terference of  a  court  of  equity,  and  to  amount  to  an 
abandonment  of  the  contract  on  his  part."     And  time,  as 

'  Watson  V.  Reid,  i  R.  &  M.,  326.  It  was  the  opinion  of  a  learned  English 
judge,. Sir  John  Romilly,  in  Lord  James  Stuart  v.  London  &  Northwestern  R.R. 
Co.,  15  Beav.,  513,  that  time  does  not  run  as  laches  where  land  is  taken  under  a 
railway  act,  until  the  termination  of  the  period  during  which  the  company  has 
power  to  construct  the  road,  for  the  reason  that,  until  then,  the  company  cannot 
know  certainly  whether  the  land  will  be  required.  But  this  view  was  not  adopted 
by  the  court.  A  mere  verbal  claim,  unaccompanied  by  any  act,  will  not  prevent 
delay  from  operating  as  laches  against  the  party  making  the  claim,  nor  keep 
alive  the  right  that  would  otherwise  be  barred.  Clegg  v.  Edmondson,  26  L.  J. 
Ch..  673. 

2  Remmington  v.  Kelley,  7  Ohio,  432  ;  Higby  v.  Whitaker,  8  lb.,  198;  Buck- 
master  V.  Grundy,  3  Gilman,  626  ;  Marston  v.  Humphrey,  24  Me.,  513  ;  Shortall 
v.  Mitchell,  57  III,  161.  A  court  of  equity  will  not  enforce  the  specific  perform- 
ance of  an  agreement  where  the  defendant  offered  to  fulfil  at  the  time  agreed, 
but  the  plaintiff  then  declined  to  carry  out  the  contract.  Schmidt  v.  Living- 
ston, 3  Edw.  Ch.,  213 ;  Gale  v.  Archer,  40  Barb.,  320  ;  Tibbs  v.  Morris,  44  lb., 
138;  ditto  v.  Harding,  73  111.,  117.  For  a  person  will  not  be  permitted  first  to 
repudiate  the  obligations  of  a  contract,  and  then  ask  a  court  of  equity  to  specif- 
ically enforce  it.  Milward  v.  Earl  of  Thanet,  5  Ves.,  720,  n.  ;  Eads  v.  Williams, 
4  De  G.  M.  &  G.,  691  ;  Roberts  v.  Lovejoy,  25  Texas  Supp.,  437  ;  Payne  v. 
Graves,  3  Leigh,  561;  Conrad  v.  Lindley,  2  Cal.,  173;  Hubbard  v.  Gray,  21 
Ark.,  501  ;  Walworth  v.  Miles,  23  lb.,  653  ;  McClellan  v.  Darrah,  50  111.,  249. 
But  although  the  rejection  by  a  party  of  the  offer,  excuses  the  other  party  from 
performance  as  a  condition  precedent,  yet  it  does  not  release  the  latter  from  his 
obligation  to  perform  so  long  as  he  insists  upon  the  agreement.  Cooper  v.  Pena, 
21  Cal.,  403  ;  Garrett  v.  Lynch,  45  Ala.,  204;  Foley  v.  Crow,  37  Ind.,  51. 

■■' Getchell  v.  Jewett,  4  Me.,  350;  Sarter  v.  Gordon,  2  Hill  Ch.,  121  ;  Grundy 
V.Wilson,  Litt.  Sel.  Cas.,  129;  King  v.  Hamilton,  4  Pet.,  311;  Ludlow  v. 
Cooper,  13  Ohio,  552;  Higby  v.  Whittaker,  8  lb.,  198  ;  Richardson  v.  Baker,  5 
Call,  514;  De  Cordova  v.  Smith,  9  Texas,  129  ;  Smith  v.  Hampton,  13  lb.,  459; 
Childress  v.  Holland,  3  Hayw.,  274;  Hemphill  v.  Miller,  16  Ark,  271  ;  Kirby  v. 
Harrison,  2  Ohio  St.,  326;  Haughwort  v.  Murphy,  2  N.J.  Eq.,  irS;  Lawrence 
V.  Lawrence,  lb.,  317  ;  Merritt  v.  Brown,  lb.,  401  ;  Madox  v.  McQuean,  3  A.  K. 
Marsh,  400;  Morgan  v.  Bergen,  3  Neb.,  209  ;  Callon  v.  Ferguson,  29  Pa.  St., 
247  ;    Dubois  v.  Baum,  46  lb.,  537  ;    Miller  v.  Henlan,  51  lb.,  265  ;    Vanzant  v. 


66o  LAPSE    OF    TIME.  §  473, 

heretofore  shown,  may  be  essential  independently  of  the 
question  of  abandonment,  as  when,  after  the  time  at  which 
a  party  should  have  fulfilled,  circumstances  occur  which 
materially  alter  the  value  of  the  property,  or  diminish  the 
benefit  of  the  contract.  An  interval  of  fifteen  months, 
between  the  signing  of  the  agreement  for  the  sale  of  a 
patent,  and  the  tender  of  a  deed  would  need  to  be  amply 
excused.'  Delay  on  the  part  of  the  plaintiff  is  a  sufficient 
ground  for  refusing  to  compel  specific  performance  of  a 
contract,  even  where  an  action  at  law  might  still  be 
brought."  Courts  of  equity  have,  at  all  times,  upon  gen- 
eral principles  of  their  own,  even  where  there  was  no 
analogous  statutable  bar,  refused  relief  to  stale  demands 
when  the  party  has  slept  upon  his  rights,  and  acquiesced  for 
a  great  length  of  time.'  Delay  for  the  following  periods 
has  been  held  to  constitute  a  bar  to  the  maintenance  of  a 
suit  for  specific  performance :  thirty-seven  years ;  *  thirty- 
four  years  ; '  thirty  years  ; '  twenty  years  ; '  eighteen  years  ;  * 
eight  years  ; "  and  a  delay  for  a  few  months,  or  even  for 

New  York,  8  Bosw.,  375  ;  Hough  v.  Coughlan,  41  111.,  131  ;  Taylor  v.  Merrill, 
55  lb.,  52;  Alexander  v.  Hoffman,  70  lb.,  114;  Fiteh  v.  Willard,  73  lb.,  92; 
Ditto  V.  Harding,  lb.,  114;  Hedenberg  v.  Jones,  lb.,  149.  Equity  will  not  aid 
a  party  in  enforcing  a  contract  when,  by  his  own  laches,  the  rights  of  third  per- 
sons without  notice  would  be  affected.  Ins.  Co.  v.  Union  Canal  Co.,  Bright  Pa., 
48.  The  ordinary  principles  which  require  promptness  in  the  assertion  of  the 
right  to  specific  performance,  apply  with  peculiar  force  where  no  consideration 
is  given.  Pigg  v.  Corder,  12  Leigh,  69.  As  a  general  rule,  to  sustain  an  impli- 
cation of  the  abandonment  of  the  contract,  the  conduct  of  the  party  ought  to 
be  such  as  to  lead  the  mind  of  a  reasonable  person  to  arrive  at  that  conclusion. 
The  attempt  of  a  vendor  to  resell  the  property,  or  the  unequivocal  exercise  of 
ownership  over  it,  without  explanation,  showing  that  he  did  not  consider  the 
contract  as  still  in  force,  might  be  such  an  act.     Garnet  v.  Macon,  6  Call,  308. 

'  Bellas  V.  Hays,  5  Serg,  &  Rawle,  427. 

-  Lloyd  v.  Collett,  4  Bro.  C.  C,  469,  n.  ;  Pollard  v.  Clayton,  i  K.  &  J.,  462  ;  Mills, 
ex  parte,  L.  R.  6,  Ch.  594. 

^  Cholmondeley  v.  Clinton,  2  J.  &  W.,  151. 

*  Ewing  v.  Beauchamp,  6  B.  Mon.,  422. 

^  Tate  V.  Conner,  2  Dev.  Eq.,  224.  *  Ritson  v.  Dodge,  33  Mich.,  463. 

'  Baird  v.  Baird,  5  J.  J.  Marsh,  580;  Williams  v.  Hart,  116  Mass  ,513. 

'Johnston  v.  Mitchell,  I  A.  K.  Marsh,  225. 

"  Brink  v.  Steadman,  70  III.,  241.  Of  course,  no  definite  rule  can  be  laid  down 
as  to  time  constituting  laches.  In  one  case,  a  lapse  of  twenty-seven  years  was 
held  no  bar  to  a  decree  tor  specific  performance.  Huffner  v.  Dickson,  2  Har.  & 
Jiohns,  46. 


§  474-  DELAY    TO    MAKE    TITLE.  66 1 

several  days,  may  sometimes  have  that  effect.  An  ante- 
nuptial agreement  contained  a  recital  that  it  was  entered 
into  with  the  desire  and  purpose  that  suitable  provision 
should  be  made  for  the  comfortable  maintenance  of  the 
wife  "  as  far  as  may  be,  beyond  the  casualties  and  contin- 
gencies to  which  men  and  business  are  exposed,"  and  pro- 
vided that  the  husband,  in  lieu  of  dower,  and  of  every 
other  claim  by  her  against  his  estate,  should  procure,  as  soon 
as  practicable,  fifty  shares  of  bank  stock,  and  immediately 
convey  them  to  a  trustee  in  trust  to  pay  the  income  to  the 
husband  during  his  life,  and  afterward  for  the  benefit  of  the 
wife,  and  that  if  the  parties  lived  five  years  after  marriage, 
the  husband  should  thereafter  pay  annually  to  the  trustee 
two  hundred  dollars  during  their  joint  lives,  to  be  held  and 
disposed  of  in  the  same  manner  as  the  bank  stock.  The 
bank  stock  was  not  conveyed  to  the  trustee  until  nearly 
four  years  after  the  marriage,  and  the  payments  of  two 
hundred  dollars  a  year  were  not  made  during  the  life  of  the 
husband,  which  continued  more  than  fifteen  years  after  the 
marriage.  A  bill  filed  by  the  executors  of  the  deceased 
husband  was  dismissed  with  costs,  on  account  of  his  delay 
to  perform  his  part  of  the  contract  for  such  a  length  of 
time.'  When  the  contract  is  in  anywise  unilateral,  as  in 
the  case  of  an  option  to  purchase,  delay  on  the  part  of  the 
purchaser  in  complying  with  it,  is  regarded  with  especial 
strictness  ;  for  then  laches  would  be  more  easily  fixed  upon 
the  vendee  than  where  the  contract  was  of  the  ordinary 
character.  The  court  will,  in  such  case,  exercise  its  discre- 
tion with  great  care,  and  scan  closely  the  conduct  of  a 
party  claiming  the  benefit  of  such  a  contract.'' 

§  474.  Delay  to  make  title. — A  vendor  who  delays   to 

'  SuUings  V.  Sullings,  9  Allen,  234. 

^  Allen  V.  Hilton,  i  Fonbl.  Eq.,  432  ;  Brooke  v.  Garrod,  ?,7  L.  J.  Ch.,  226  ; 
Estes  V.  Furlong,  59  111.,  298.  Where  a  bond  was  conditioned  to  make  title  as 
soon  as  the  obligor  should  get  one,  a  defence  to  the  bill  of  the  obligee  on  the 
ground  of  lapse  of  time,  was  held  not  good,  as  he  had  no  precedent  condition 
to  perform  to  entitle  him  to  the  enforcement  of  the  contract.  Koen  v.  White, 
Meigs  (Tenn.),  358 ;  see  Mitchell  v.  Long,  5  Litt.,  71. 


662  LAPSE    OF    TIME.  §  474. 

tender  a  conveyance  for  an  unreasonable  time,  and  until  an 
action  has  been  brought  for  the  purchase  money  paid,  and 
who  applies  to  a  court  of  equity  for  a  perpetual  injunction 
against  that  action,  and  asks  that  the  purchaser  may  be  com- 
pelled to  receive  a  deed,  without  showing  any  excuse  for 
the  delay,  or  that  the  land  has  depreciated  in  value,  or  that 
there  has  been  a  change  of  circumstances,  will  not  be  en- 
titled to  relief.'  Where  the  vendor  delayed  making  title 
until  the  interest  on  the  purchaser's  debt  had  accumulated 
to  a  large  sum,  the  court  refused  to  compel  the  vendee  to 
accept  a  confirmation  of  title,  and  pay  the  remainder  of  the 
purchase  money."  A  delay  of  several  years,  together  with 
a  sale  of  a  portion  of  the  premises,  would  be  strong  evidence 
of  abandonment  of  the  contract,  and  of  course  bar  a  suit 
for  specific  performance  as  against  the  original  purchaser." 
But  a  mere  delay  to  make  title  for  three  years,  was  held  not 
to  have  such  an  effect.'  In  a  suit  for  the  specific  perform- 
ance of  an  agreement,  it  appeared  that,  in  1863,  the  plain- 
tiff contracted  to  sell  land  and  certain  personal  property  to 
the  defendant  free  from  the  incumbrance  of  dower ;  that 
the  contract  was  partially  performed  by  the  execution  of  a 
deed  to  the  defendant,  who  paid  part  of  the  purchase  money 
and  gave  his  note  in  Confederate  money  for  the  residue  ; 
that  in  1867  the  plaintiff  tendered  to  the  defendant  a  deed 
for  the  dower  interest,  and  demanded  payment  of  the  note 
in  United  States  currency  ;  and  that  the  defendant  refused 
to  complete,  because  the  personal  property  had  not  been 
delivered,  and  because  the  fulfilment  of  the  other  part  of 
the  contract  had  been  unreasonably  delayed  by  the  plaintiff. 
It  was  held  that  the  suit  could  not  be  maintained,  but  that, 
as  the  contract  was  fair  and  understood  by  the  parties  when 


'  Anderson  v.  Fry,  i8  III.,  94.;  Cadwalader's  Appeal,  57  Pa.  St.,  153;  Watts 
V.  Waddle,  6  Pet.,  389;  Harris  v.  Kidwell,  7  J.J.  Marsh,  382  ;  Taylor  v.  Porter, 
I  Dana,  421  ;  Pratt  v.  Carroll,  8  Cranch,  471. 

"  Williams  v.  Mattocks,  3  Vt.,  189. 

3  McGalliard  v.  Aikin,  2  Ired.  Eq.,  186. 

*  Osborne  v.  Bremar,  i  Dessaus  Eq.,  486. 


§  475-       UNEXCUSED  DELAY  OF  PURCHASER.         663 

they  entered  into  it,  there  was  no  equity  calling  for  its  re- 
scission.' 

§  475.  Unexcused  delay  of  purchaser. — Laches  of  the 
vendee,  depriving  him  of  the  right  to  insist  upon  the  con- 
tract of  sale,  may  consist  simply  in  neglecting  to  make  his 
payments,  or  to  fulfil  some  other  essential  condition,  or,  in 
not  only  failing  for  a  long  period  to  fulfil  on  his  part,  but 
by  lying  by  and  seeing  the  property  sold  to  a  third  person, 
or  in  neglecting  to  file  a  bill  to  enforce  the  contract  against 
the  vendor.  The  usuafl  maxim  is,  that  a  party  seeking 
specific  performance,  must  show  himself  ready,  desirous, 
prompt,  and  eager  to  perform  the  contract.  Where,  in  a 
contract  for  the  conveyance  of  land,  no  time  is  fixed  for 
payment  and  delivery  of  the  deed,  payment  must  be  made 
in  a  reasonable  time,  or  on  request. '  The  delay  of  the  pur- 
chaser without  excuse  which  will  preclude  a  decree  for  spe- 
cific performance  in  his  behalf,  may,  as  we  have  seen,  be 
measured  by  years,  or  months,  according  to  the  circum- 
stances of  the  particular  case.  But,  be  the  time  long  or  short, 
when  it  indicates  a  virtual  abandonment  of  the  contract  on 
his  part,  it  will  deprive  him  of. all  just  claim  to  equitable 
interposition.'     Where  a  person  contracted  for  land  by  an 

^  Adding-ton  v.  McDonnell,  63  N.  C,  389.  Where  A.  indorsed  notes  to  B.,  in 
consideration  of  which  B.  agreed  that  on  payment  of  the  notes  by  the  makers, 
or  by  A.,  he  would  convey  to  A.  certain  land,  and  B.  did  not  take  the  proper 
steps  to  collect  the  notes  of  the  makers,  it  was  held  that  as  he  had  discharged 
the  indorser  by  his  laches,  he  was  ^ound  to  convey.    Hall  v.  Green,  14  Ohio,  497. 

2  Andrews  v.  Bell,  56  Pa.  St.,  343.  A  purchaser  at  a  sheriff's  sale  paid  the  price, 
and  took  possession  of  the  land.  The  judgment  debtor  knew  of,  and  acquiesced 
in,  the  claim  of  ownership  until  after  the  purchaser  had  sold  and  removed  from 
the  State  with  all  of  his  property.  The  sheriff  having  died  after  making  due  re- 
turn of  the  execution,  but  before  he  had  executed  a  deed  to  the  purchaser,  it  was 
held  that  the  laches  of  the  latter  would  not  prevent  a  court  of  equity  from  grant- 
ing relief  at  the  instance  of  the  sub-purchaser  by  decreeing  a  divestiture  of  the 
title  out  of  the  defendant  in  execution.  Stewart  v.  Stokes,  33  Ala.,  494.  A  ven- 
dee of  land  has  a  right,  when  there  is  an  apparent  incumbrance  thereon,  to  a 
reasonable  time  for  investigation,  although  he  has  not  stipulated  for  an  abstract 
of  title,  or  for  a  prehminary  examination.     Allen  v.  Atkinson,  21  Mich.,  351. 

3  Finch  v.  Parker,  49  N.  Y.,  i ;  Mann  v.  Dunn,  2  Ohio  St.,  187  ;  Rose  v.  Svvann, 
56  111.,  37;  Howe  v.  Rogers,  32  Texas,  218;  Campfell  v.  Hicks,  19  Ohio  St., 
433  ;  Gentry  v.  Rogers,  40  Ala.,  442  ;  Sprigg  v.  Albin,  6  J.  J.  Marsh,  1 58  ;  Brewer 
v.  Connecticut,  9  Ohio,  189;  Weber  v.  Marshall,  19  Gal.,  447;  Scott  v.  Barker, 
14  Ohio,  547  ;  Bracken  v.  Martin,  3  Yerg.,  55  ;  Bennett  v.  Welch,  25  Ind.,  140; 
Eppmger  V.  McGreal,  31  Texas,  147;  Fuller  v.  Hovey,  2  Allen,  324;  Broaddus 


664  LAPSE    OF   TIME.  §  475. 

agent,  who  represented  himself  in  the  transaction  as  the 
principal,  and  it  was  agreed  that  the  deed  should  be  given 
September  ist,  and  sooner,  if  the  purchaser  required  it,  one- 
half  of  the  purchase  money  to  be  paid  when  the  deed  was 
delivered,  and  the  real  purchaser,  between  whom  and  the 
vendor  there  had  been  no  personal  communication  as  to  the 
purchase,  left  the  State  on  the  ist  of  September,  and  did 
not  return  until  two  weeks  thereafter,  it  was  held  that  the 
vendee  had  been  guilty  of  such  neglect  as  to  bar  his  right 
to  specific  performance/  In  a  suit  brought  by  the  purchaser 
for  the  specific  performance  of  a  contract  of  sale,  it  appeared 
that  by  the  contract  the  first  payment  was  to  be  made  on 
or  before  the  5th  of  the  next  January ;  that  the  time  was 
extended  until  the  i6th  of  the  same  month,  when  it  was 
agreed  that  payment  should  be  made  in  full ;  that  the  ven- 
dor, who  resided  in  Canada,  was  waiting  to  have  the  matter 
closed  ;  that  the  complainant,  instead  of  keeping  his  en- 
gagement, went  away,  and  did  not  return  until  two  or  three 
days  after  the  time  set  for  completion,  and  that  the  vendor 
went  home,  but  left  the  deed  with  an  agent ;  that  the  latter 
saw  the  complainant  soon  after  his  return,  and  informed 
him  that  he  had  the  deed  ready  for  delivery,  but  the  com- 
plainant was  not  ready  to  pay  ;  that  on  the  23d  of  January 
complainant  v/rote  to  the  vendor  expressing  his  disappoint- 
ment in  not  having  been  able  to  pay,  saying  that  money 
was  scarce,  and  he  could  not  negotiate  his  paper  without 
making  more  of  a  sacrifice  than  he  was  willing  to  submit  to, 
and  offering  to  pay  part  down,  and  the  residue  in  two,  three, 
and  four  years  ;  that  five  days  thereafter,  he  had  an  inter- 
view with  the  vendor's  agent,  and  stated  that  he  would  be 
ready  to  pay,  except  for  a  lien  he  had  discovered  on  the 

V.  Ward,  8  Mo.,  217 ;  Thompson  v,  Bruen,  46  111.,  125  ;  Peck  v.  Brighton,  69 
lb.,  200;  Mix  V.  Balduc,  78  lb.,  215  ;  Green  v.  Covilland,  10  Cal.,  317;  Patter- 
son V.  Martz,  8  Watts,  374.  A  decree  for  specific  performance  was  denied,  it 
appearing  that  for  seventeen  months  the  purchaser  had  done  nothing  to  perform 
his  part  of  the  contract,  although  she  had  previously  paid  money  on  it,  and  be- 
fore suit  had  not  offered  to  perform,  or  demanded  performance.  Bullock  v. 
Adams,  20  N.  J.  Eq.  (5  C.  E.  Green),  367. 
'  Ives  V.  Armstrong,  5  R.  I.,  567. 


§  475-       UNEXCUSED  DELAY  OF  PURCHASER.  665 

property  in  the  form  of  a  decree  for  alimony  ;  and  that  two 
months  subsequently,  the  complainant  made  a  formal  tender 
of  the  money,  and  demanded  a  conveyance,  which  was  re- 
fused. The  decree  of  the  court  below  dismissing  the  bill, 
was  affirmed.*  Where  it  appeared  that  the  defendant  ver- 
bally agreed  to  buy  property  at  a  sheriff's  sale  for  the  benefit 
of  the  judgment  debtor,  the  latter  promising  to  pay  for  and 
take  the  property  within  sixty  days  after  the  sale,  which, 
however,  he  did  not  do  for  over  two  years,  and  meanwhile 
the  defendant  was  permitted  to  do  many  things  as  owner  of 
the  property,  such  as  fencing,  ditching,  and  selling  some  of 
it,  it  was  held  that  the  agreement  could  not  be  specifically 
enforced."  If  the  purchase  money,  on  a  contract  for  the  sale 
of  land,  fall  due  in  the  life-time  of  the  vendee,  a  long  delay 
in  making  payment  after  his  death,  will  not  be  excused  by 
the  fact  that  the  heirs  are  infants.'  Where  there  was  a  de- 
lay of  fifteen  years  in  making  the  last  payment  due  on  a 
contract  to  convey  land,  and  the  only  excuses  offered  for 


'  Shortall  v.  Mitchell,  57  111.,  161.  In  this  case,  the  court  said:  "The  object 
of  the  defendants  in  making  the  sale,  was  to  raise  immediately  a  considerable 
sum  of  money.  For  that  purpose,  the  first  payment,  which  was  to  have  been 
made  on  the  5th,  was  extended  by  agreement  to  the  i6th,  and  the  entire  pur- 
chase money  was  then  to  be  paid.  But  Shortall  not  only  did  not  pay  at  that 
time,  but  admitted  to  George  Mitchell  his  inabihty  to  do  so,  and,  on  the  24th, 
wrote  to  Alexander  the  letter  above  described,  in  which  he  virtually  repudiated 
the  contract.  In  view  of  these  facts,  we  are  at  a  loss  to  understand  on  what 
ground  he  can  claim  the  court  should  compel  these  defendants  to  make  him  a 
deed.  He  has  paid  them  nothing.  He  has  disappointed  them  by  failing  to  pay 
when  he  promised,  although  they  were  anxious  to  complete  the  contract.  Even 
if  he  was  ready  to  pay  on  the  28th  but  for  the  decree  for  alimony,  it  was  then  too 
late  to  make  that  offer  the  basis  of  relief;  for  he  had  virtually  repudiated  the  con- 
tract, not  on  the  ground  of  the  decree,  but  because  he  could  not  make  the  pay- 
ment. The  alimony  had,  however,  been  satisfied  in  another  manner  ;  and  in  view 
of  the  entire  correspondence,  we  are  inclined  to  the  opinion  that  Shortall  was 
aware  of  the  fact,  and  that  the  talk  about  the  alimony  on  the  28th,  was  for  the 
purpose  of  gaining  further  time.  But  whether  so  or  not,  is  immaterial,  as  he 
had  already  admitted  his  inability  to  pay,  and  had  proposed  a  new  contract.  If 
the  defendants  had  brought  suit  against  him,  the  apparent  lien  upon  the  record 
might  be  of  some  importance.  When,  however,  he  is  seeking  the  aid  of  the  court, 
he  cannot  excuse  his  non-payment  on  the  i6th,  or  his  letter  of  the  24th,  by  alleg- 
ing that  on  the  28th,  he,  for  the  first  time,  discovered  there  was  an  apparent  lien, 
though  there  was  none  in  fact.  Before  he  claims  to  have  had  any  knowledge  of 
this  apparent  lien,  he  had  lost  the  right  to  ask  a  court  of  chancery  for  a  decree 
of  specific  performance,  by  showing  himself  either  unable  or  unwilling  to  perform 
his  part  of  the  contract." 

*  Merritt  v.  Brown,  21  N.  J.  Eq.,  401.  ^  Henry  v.  Corm,  12  Ohio,  193. 


666  LAPSE    OF   TIME.  §  476. 

the  delay  were,  the  great  intimacy  and  friendship  between 
the  parties,  the  civil  war,  the  purchaser  being  a  citizen  of 
Tennessee,  the  death  of  the  purchaser,  and  the  minority  of 
his  heirs,  a  decree  for  specific  performance  was  refused.' 

§  476.  When  vendor  entitled  to  resell  property. — Gross 
laches  by  the  purchaser  of  land  in  performing  his  part  of 
the  contract,  will  justify  the  vendor  in  selling  to  a  third 
person  without  first  tendering  the  money  already  paid.'  A 
purchaser  of  land,  refusing  to  fulfil  the  contract,  filed  a  bill 
to  set  it  aside,  and  to  recover  such  of  the  purchase  money 
as  he  had  paid.  To  this  bill  the  vendor  answered  that  he 
was  willing  and  able  to  perform  ;  and  the  vendee,  in  an 
amended  bill,  filed  three  years  afterward,  prayed  for  specific 
performance,  when  the  vendor  alleged  that  he  had  sold  to 
another.  The  land  having  in  the  meantime  risen  in  value, 
it  was  held  that,  as  the  vendee  had  trifled  with  his  contract, 
he  was  not  entitled  to  a  conveyance."  Where  a  purchaser 
of  land  paid  the  first  instalment,  and  then  did  not  move  in 
the  matter  for  six  years,  in  the  meantime  alleging  defect  of 
title  and  his  own  inability  to  comply  with  the  contract,  and 
the  vendor  sold  the  property  to  another  person  who  enter- 
ed and  made  improvements,  it  was  held  that  the  second 
vendee  could  hold  the  land,  no  fraud  or  collusion  being 
shown  in  the  second  sale.'  A  vendee  of  real  estate  did  not 
bring  a  suit  for  specific  performance  until  after  a  delay  of 
twelve  years,  and  it  appeared  that  after  suffering  the  prop- 
erty to  be  sold  under  a  mortgage  which  he  had  assumed 
the  payment  of  as  part  of  the  purchase  money,  he  wrote  to 
the  vendor  claiming  that  it  was  the  duty  of  the  latter  to 
redeem  the  property,  which  had  been  purchased  in  the 
name  of  a  third  person.  The  vendor  answered  that  he  had 
no  claim  or  interest  in  the  premises,  and  it  was  insisted  by 
the  vendee  that  he  was  misled  by  this,  and  induced  to  bring 

'  Walker  v.  Douglass,  70  111.,  445. 

2  Mason  v.  Owens,  56  111.,  259.  ^  Williams  v.  Starke,  2  B.  Mon.,  196. 

*  Hawthorn  v.  Bronson,  16  Serg.  &  Rawle,  269. 


§  476-     WHEN  VENDOR  ENTITLED  TO  RESELL  PROPERTY.        667 

an  action  to  recover  back  what  he  had  paid,  and  thus  de- 
layed in  commencing  his  present  suit.  As  the  vendor  was 
not  obliged  to  disclose  his  interest,  if  he  had  any,  and  the 
vendee  was  notified,  before  he  brought  his  present  suit,  of 
the  circumstances  of  the  sale  under  the  mortgage,  it  was 
held  that  a  sufficient  excuse  for  the  delay  had  not  been 
given,  and  that  the  decree  of  the  court  below  dismissing 
the  bill  must  be  affirmed."  In  a  suit  by  the  vendee  against 
the  vendor  of  land  for  specific  performance,  it  appeared 
that  in  July,  1868,  one  A.,  being  the  owner  of  certain  real 
estate,  contracted  to  sell  it  to  the  plaintiff  for  five  hundred 
dollars.  Two  hundred  dollars  were  paid  at  the  execution 
of  the  agreement,  and  A.  gave  his  bond  to  convey  the  land 
to  the  plaintiff  upon  the  payment  of  three  promissory 
notes  in  one,  two,  and  three  years.  The  plaintiff  there- 
upon took  possession  of  the  land,  and  began  to  improve 
and  cultivate  it  down  to  the  fall  of  1871,  but  erected  no 
buildings,  and  never  permanently  resided  on  the  land.  In 
February,  1872,  the  plaintiff,  having  sold  the  fences  to  one 
M.,  left  the  premises,  and  was  never  afterward  in  possession 
or  exercised  any  authority  over  them.  About  this  time 
the  plaintiff  wrote  to  A.,  inclosing  forty  dollars,  which  A., 
three  days  thereafter,  returned  in  a  letter  as  follows : 
"  Learning  soon  after  seeing  your  brother  here  last  month, 
that  you  had  abandoned  my  land,  after  having  stripped  it 
of  all  fencing,  I  took  possession  of  it,  and  cannot  now  con- 
sent to  take  part  of  the  overdue  interest,  and  allow  the 
matter  to  run  along  for  years  as  in  the  past.  I  regard  the 
contract  as  cancelled,  and  return  the  order."  The  first 
note,  and  one  year's  interest  on  the  second  and  third  notes, 
were  paid,  but  nothing  afterward.  In  May,  1872,  A.  con- 
veyed the  property  to  M.,  who  paid  for  it  five  hundred 
dollars  cash,  and  fifty-one  dollars  for  taxes  past  due.  M. 
went  into  peaceable  possession,  built  a  house  on  the  prop- 
erty, and  otherwise  improved  it,  and  held  possession  at  the 

^  Iglehart  v.  Gibson,  56  III.,  81. 


668  LAPSE   OF   TIME.  §  477- 

commencement  of  the  suit.  It  was  held  that  the  facts 
showed  gross  neghgence  on  the  part  of  the  plaintiff,  both 
in  performing  his  part  of  the  contract,  and  in  applying  for 
relief ;  and  a  judgment  rendered  for  the  defendant  in  the 
court  below,  was  affirmed.' 

§  477.  Forbearance  to  bring  suit. — Long  delay  in  tak- 
ing any  proceedings  to  enforce  a  contract,  after  the  party 
is  entitled  to  its  fulfilment,  will  be  a  defence  to  his  suit  when 
finally  brought,  unless  there  are  circumstances  which  show 
that  the  delay  was  induced,  or  at  least  sanctioned,  by  the 
other  party,  or  some  other  equity  has  intervened  requiring 
a  specific  performance.*    Land  was  conveyed  to  a  trustee  in 

'  McDermid  v.  McGregor,  21  Minn.,  in.  Where  the  complainant  stood  pas- 
sively by,  two  years  after  he  had  been  notified  that  the  premises  would  be  sold, 
and  more  than  eighteen  months  after  a  sale  had  been  made,  without  taking 
steps  to  enforce  the  contract,  it  was  held  that  he  was  not  entitled  to  a  decree. 
Gariss  v.  Gariss,  2  N.  J.  Eq.  (i  Green),  79. 

"^  Van  Doren  v.  Robinson,  16  N.  J.  Eq.,  256;  Preston  v.  Preston,  5  Otto,  200. 
The  vendor  is  not  required  to  wait  indefinitely  after  the  failure  of  the  purchaser 
to  comply  with  the  terms  of  his  agreement.  If  the  payments  are  not  made  when 
due,  he  may,  if  out  of  possession,  bring  ejectment ;  or  he  may  institute  proceed- 
ings in  equity  to  foreclose  the  right  of  the  vendee  to  purchase,  in  which  case  the 
decree  usually  gives  the  purchaser  a  definite  time  within  which  to  perform. 
Keller  v.  Lewis,  53  Gal.,  113.  Where  a  vendee,  who  had  taken  no  active  steps 
to  enforce  the  contract  of  sale  for  nearly  seven  years  after  he  might  have  made 
payment  and  enforced  his  contract,  it  was  held  that  such  delay,  unexplained,  in- 
dicated an  abandonment  of  the  purchase,  and  barred  his  right  to  equitable  rehef. 
McLaurie  v.  Barnes,  72  111.,  73.  In  another  case,  a  vendee,  who  had  slept  on 
his  rights  for  five  years,  was  refused  a  decree.  McWiUiams  v.  Long,  32  Barb., 
194;  S.  P.,  McMillin  v.  McMillin,  7  T.  B.  Hon.,  560.  The  court  declined  to 
enforce  an  agreement  to  execute  a  mortgage,  after  a  delay,  in  filing  the  bill,  of 
eight  years.  Nelson  v.  Hagerstown  Bank,  27  Md.,  51.  Where  a  parol  agree- 
ment was  made  for  the  sale  of  land,  and  subsequently  recognized  by  the  vendor 
in  writing,  when  he  expressed  a  willingness  to  perform  it,  and  after  this  the  pur- 
chaser removed  from  the  State,  and  took  no  steps  toward  completion  of  the  con- 
tract, during  which  time  the  vendor  expended  a  considerable  amount  of  money 
in  improving  the  land,  on  a  bill  filed  by  the  purchaser  ten  years  after  the  parol, 
and  six  years  after  the  written  agreement,  it  was  held  that  he  had  lain  by  too 
long,  and  was  not  entitled  to  specific  performance.  Francis  v.  Love,  3  Jones  Eq., 
321.  In  one  case,  ten  years  was  held  ample  time  within  which  to  seek  specific 
performance  of  a  contract  to  convey,  unless  there  was  a  good  excuse  for  the  de- 
lay. Glasscock  v.  Nelson,  26  Texas,  1 50.  An  interval  of^ eleven  years  in  assert- 
ing any  rights  under  a  contract,  during  which  time  the  complainant  paid  no  taxes 
on  the  property,  or  exercised  any  ownership  over  it,  but  allowed  a  subsequent 
purchaser  without  notice  to  improve  the  premises,  was  held  to  be  a  delay  which 
ought  to  bar  any  claim  to  relief  in  equity.  Iglehart  v.  Vail,  73  111.,  63.  Similar 
cases  have  occurred,  with  the  same  result,  where  the  delay  was  for  thirteen  years. 
Conway  v.  Kinsworthy,  21  Ark.,  9;  Fitch  v.  Boyd,  55  111.,  307.  Where  a  pur- 
chaser of  land  not  in  possession  slept  on  his  rights  for  more  than  fourteen  years, 
without  taking  any  step  toward  entitling  himself  to  a  conveyance,  it  was  held 


§  47^-  CONSENTING    TO    DELAY.  669 

trust  to  grant  a  lease  of  mines  under  the  same  to  certain  per- 
sons for  forty-two  years,  and,  at  the  request  of  the  lessees 
made  at  any  time  thereafter,  to  grant  a  further  lease  of  the 
same  mines  for  twenty-one  years,  to  commence  at  the  ex- 
piration of  the  first  term  ;  the  first  lease  to  contain  a  cove- 
nant of  renewal  for  the  second  term.  The  lease  of  forty-two 
years  was  made  accordingly.  Shortly  before  the  expiration 
of  the  first  term,  the  lessees  applied  for  renewal,  which  was 
refused.  No  proceedings  were  taken  to  enforce  perform- 
ance of  the  covenant  or  trust,  for  upwards  of  two  years  after 
the  refusal.  It  was  held  that,  so  far  as  the  right  to  renewal 
depended  on  the  covenant,  the  delay  or  acquiescence  would 
be  a  defence  in  equity.' 

§  478.  Consenting  to  delay. — Specific  performance  of  a 
contract  may  be  decreed  in  favor  of  a  party  who  has  failed 
to  perform  his  part  of  the  agreement,  if  he  can  show  an 
acquiescence  in  the  delay  by  the  other  party,  or  an  accept- 
ance by  him  of  a  substitute  for  a  literal  performance.^ 
Where  a  contract  for  the  sale  of  land  provides  that  upon 
default  of  the  vendee  in  making  his  payments  at  the  time 
agreed,  the  vendor  may  re-enter  and  take  possession,  and 
that  all  right  and  interest  of  the  vendee  under  the  contract 
shall  cease,  and  all  payments  and  improvements  made  by 
the  vendee  be  retained  by  the  vendor  as  liquidated  damages, 

such  laches  as  was  fatal  to  his  equity.  Dubois  v.  Baum,  46  Pa.  St.,  537.  See 
King  V.  Hamilton,  4  Pet.,  311.  In  another  case,  fifteen  years'  delay  in  calling  for 
the  specific  performance  of  a  contract  to  convey  land,  the  vendor  having  in  the 
meantime  died,  was  held  a  circumstance  of  great  weight  against  the  complain- 
ant, and  that,  although  it  did  not  of  itself  bar  the  suit,  yet  the  court  would  re- 
quire more  strict  and  full  proof,  and  would  scrutinize  the  evidence.  Eyre  v. 
Eyre,  19  N.  J.  Eq.,  102.  Where  the  vendee,  after  paying  the  purchase  money, 
waited  sixteen  years  before  bringing  his  suit  for  specific  performance,  the  statutory 
bar  in  similar  cases  at  law  being  ten  years,  it  was  held  that,  in  the  absence  of 
any  strong  equitable  circumstances,  the  contract,  after  such  a  long  delay,  could 
not  be  enforced.  Johnson  v.  Hopkins,  19  Iowa,  172.  In  two  other  cases  in 
which  a  decree  was  refused,  the  delay  was  respectfully  for  seventeen  and  eight- 
een years.  Peters  v.  Delaplaine,  49  N.  Y.,  3(52  ;  Watson  v.  Inman,  23  Texas, 
531.  For  a  case  of  protracted  delay,  see  Holt  v.  Rogers,  8  Pet.,  420.  For  de- 
lay with  failure  of  proof,  see  Calvert  v.  Nichols,  8  B.  Mon.,  264. 

^  Walker  v,  Jeffreys,  i  Hare,  341, 

"^  Hutchison  v.  McNutt,  i  Ohio,  14;  Koen  v.  White,  Meigs  Tenn.,  358.  See 
Mitchell  v.  Long,  5  Litt.,  71. 


670  LAPSE    OF    TIME.  §  479. 

the  equitable  rights  of  the  vendee  do  not  become  ipso  facto 
forfeited  by  his  failure  to  pay  at  the  time  stipulated,  with- 
out anything  done  on  the  part  of  the  vendor  indicating  an 
intention  to  insist  upon  such  forfeiture  ;  especially  after  the 
payment  of  a  considerable  portion  of  the  purchase  money. 
But  the  vendor  must  re-enter,  or  do  something  equivalent." 
If  a  person  be  let  into  possession  of  land  under  a  contract 
for  its  purchase,  and  no  steps  be  taken  by  either  party  to 
enforce  the  agreement,  it  will  be  presumed  that  each  is  satis- 
fied, and  neither  can  insist  on  lapse  of  time  as  a  bar  to  a 
suit  for  specific  performance.''  In  case  both  parties  are  in 
default,  each  impliedly  waives  strict  performance  as  to  time, 
and  the  contract  remains  in  force.'  Where  neither  party 
performed  or  offered  to  perform  on  the  day  fixed  in  the 
contract,  and  the  purchaser  remained  in  possession  several 
days  afterward,  it  was  held  that  his  continued  possession 
precluded  him  from  rescinding  the  contract,  on  the  ground 
that  the  other  did  not  perform  upon  the  precise  day.  In 
such  case,  if  no  time  be  fixed,  a  reasonable  time  will  be 
allowed.*  A  purchaser,  who  is  in  possession  under  a  con- 
tract of  sale,  will  not  for  that  reason  be  compelled  to  accept 
a  bad  or  defective  title.  Neither  will  his  possession  justify 
the  vendor  in  unreasonably  delaying  the  title,  or  deprive  the 
purchaser  of  the  right  to  complain  of  delay.  But  so  long 
as  he  retains  possession,  it  is,  unless  under  peculiar  circum- 
stances, so  far  a  waiver  of  all  previous  objections,  whether 
of  defect  of  title  or  delay  in  completing  it,  that  if  the  title 
is  made  to  him  while  still  in  possession,  he  must  accept  it.' 
§  479.    Vendor  neglecting  to  insist  on  fulfilment. — If  the 

'  Morris  v.  Hoyt,  11  Mich.,  9.     See  Staley  v.  Murphy,  47  111.,  241. 

-  Miller  v.  Bear,  3  Paige  Ch.,  466 ;  Scarlett  v.  Hunter,  3  Jones  Eq.,  84. 

'  Van  Campen  v.  Knight,  63  Barb.,  205.  Before  the  defendant  in  a  suit  for 
specific  performance  can  insist  on  the  antiquated  nature  of  the  claim,  he  must 
show  that  he  has  performed,  or  been  ready  to  perform,  the.conditions  precedent 
on  his  part,  and  that  the  complainant  has  omitted  some  obligation  or  duty  ;  and 
then,  from  the  lapse  of  a  reasonable  time  for  performance  by  the  complainant, 
and  his  default,  a  relinquishment  of  the  contract  by  him,  or  a  rescission  of  it, 
may  be  presumed.     House  v.  Beatty,  7  Ohio,  417. 

*  Benson  v.  Tiiton,  24  How.  Pr.,  494.     ''  Thompson  v.  Dulles,  5  Rich.  Eq.,  370. 


§  479-     VENDOR  NEGLECTING  TO  INSIST  ON  FULFILMENT.      67 1 

time  for  the  performance  of  a  contract  is  not  essential,  and 
the  vendor  has  shown  indulgence,  he  cannot  suddenly  in- 
sist on  a  forfeiture.  Where  a  vendee  met  his  first  pay- 
ments, and,  having  become  insolvent,  the  vendor  allowed 
him  to  retain  possession  of  the  property  for  three  or  four 
years  and  make  valuable  improvements,  and  afterward  ten- 
dered him  a  deed  which  was  not  in  accordance  with  the 
agreement,  without  offering  to  return  what  had  already 
been  paid,  it  was  held  that  the  vendee  was  entitled  to  spe- 
cific performance  on  payment  of  the  purchase  money.'  Un- 
der a  parol  agreement  for  the  sale  of  land  by  A.  to  B.,  B. 
took  possession,  made  improvements,  and  from  time  to 
time  paid  small  sums  on  account  of  the  purchase  money. 
Six  years  later  A.  conveyed  the  property  to  C,  who  had 
knowledge  of  all  the  facts,  with  the  understanding  that  C. 
was  to  fulfil  the  contract  between  A.  and  B.,  and  that  the 
land  would  be  paid  for  by  the  labor  of  B.  for  C.  Sixteen 
years  after  the  conveyance  to  C,  B.  offered  to  pay  what- 
ever remained  due,  and  demanded  a  deed,  which  C.  refused 
to  give.  It  was  held  that  the  fact  that  B.  continued  to 
occupy  and  make  improvements,  increasing  the  value  of 
the  property  far  beyond  the  purchase  money  and  interest 
due,  or  likely  to  become  due,  and  without  any  claim  of  rent 
by  C,  and  with  his  knowledge  and  apparent  acquiescence, 
and  that  B.  labored  for  C.  at  times,  during  the  whole  pe- 
riod, pursuant  to  the  agreement,  and  C.  had  had  the  op- 
portunity, if  he  did  not  in  fact  avail  himself  of  it,  to  make 
applications  for  labor  upon  the  debt  due  for  the  purchase 
money,  if  not  sufficient  to  authorize  a  presumption  of  pay- 
ment, was  quite  enough  to  show  a  waiver  and  to  estop  him 
from  making  any  claim  founded  on  lapse  of  time.'  A 
court  of  equity  will  not  permit  a  vendor,  who  has  received 
part  of  the  purchase  money  and  lain  quietly  by,  seeing  the- 
vendee  expend  large  sums  in  improvements  without  de- 
manding the  balance  due,  to  forfeit  the  contract  when  he 

^  Murphy  v.  Lockwood,  21  111.,  611.  °  Green  v.  Finin,  35  Conn,,  178, 


6/2  LAPSE    OF    TIME.  §  480. 

has  sustained  no  injury  by  the  want  of  an  exact  perform- 
ance.' A  vendee  took  possession  of  land  under  a  contract 
for  its  purchase,  payment  to  be  partly  on  time.  When  the 
balance  was  due  the  vendor  made  no  formal  demand,  but 
said  that  he  was  ready  to  execute  a  deed  when  the  money 
was  paid,  and  after  the  time  for  payment  had  elapsed,  the 
vendee  tendered  the  amount  due,  which  the  vendor  refused 
to  accept.  It  was  held  that  the  vendee  was  entitled  to  re- 
lief.^ 

§  480.  Vendor  not  objecting  to  delay. — A  recognition  of 
the  contract  as  still  subsisting  will  constitute  a  waiver  of 
the  default  of  the  other  party.'  A  bill  to  compel  specific 
performance  of  a  bond  for  conveyance  upon  payment  of  a 
stipulated  sum  on  or  before  April  ist,  which  alleged  pos- 
session and  improvements  made  by  the  complainant  with 
the  defendant's  knowledge  and  consent,  and  a  tender  of  the 
price  with  interest  on  May  25th  next  ensuing,  was  held 
not  demurrable.*  Where  a  vendor,  more  than  a  year  after 
the  sale,  received  three-fourths  of  the  purchase  money 
without  objection,  and,  two  months  thereafter,  the  vendee 
brought  a  suit  to  compel  performance,  it  was  held  that  he 
was  entitled  to  a  decree."  A  distinct  recognition  by  the 
vendor  of  the  vendee  as  owner  of  the  land,  and  asking  him 

'  Farley  v.  Vaughan,  ii  Cal.,  227.  ^  Ahl  v.  Johnson,  20  How.,  511. 

^Eubank  v.  Hampton,  i  Dana,  343;  Logan  v.  M'Chord,  2  A.  K.  Marsh,  224; 
Durand  v.  Sage,  11  Wis.,  151  ;  Brassel  v.  McLemore,  50  Ala.,  476.  Where  a 
purchaser  of  real  estate  at  an  auction  sale  paid  ten  per  cent,  of  the  purchase 
price,  signed  the  usual  memorandum  of  sale  with  the  auctioneer,  and  shortly 
before  the  time  agreed  upon  for  the  payment  of  the  balance  of  the  purchase 
money,  tendered  the  vendor's  agent  a  check  for  the  amount,  which  the  agent 
refused  unless  certified,  but  permitted  the  plaintiff  to  go  for  the  certification, 
with  the  impression  that  the  certified  check  would  be  received  at  any  time  dur- 
ing the  day,  and  the  purchaser  two  hours  after  the  time  fixed  for  performance 
tendered  the  check  duly  certified,  and  the  land  was  the  same  day  conveyed  to  a 
third  person  who  had  full  knowledge  of  all  the  facts,  in  a  suit  for  specific  per- 
formance against  the  vendor  and  subsequent  purchaser,  it  was  held  that  the  de- 
fendants having  admitted  the  contract,  and  not  having  pleaded  the  statute,  were 
to  be  deemed  to  have  renounced  the  benefit  of  it ;  that  performance  at  the  pre- 
cise time  w'as  waived ;  that  tender  not  having  been  refused  because  not  in 
money,  the  right  to  demand  money  was  waived,  and  that  the  subsequent  pur- 
chaser was  properly  required  to  convey  to  the  plaintiff.  Duffy  v.  O'Donovan,  46 
N.  Y.,  223. 

*  Barnard  v.  Lee,  97  Mass.,  92.  '  Collins  v.  Vandever,  i  Iowa,  573. 


480.  VENDOR    NOT    OBJECTING   TO    DELAY.  673 

to  refund  a  year's  tax  the  vendor  had  paid  thereon  for  the 
year  subsequent  to  the  time  fixed  for  completion,  is  evi- 
dence from  which  it  may  be  inferred  that  the  time  of  pay- 
ment was  waived/  A  vendor,  instead  of  declaring  the  con- 
tract forfeited  because  the  first  payment  was  not  made  at 
the  time  agreed,  demanded  payment,  and,  for  a  period  of 
nearly  two  years,  gave  the  vendee  no  notice  that  the  con- 
tract w^as  at  an  end,  or  did  anything  to  dispose  of  the  prop- 
erty. It  w^as  held  that,  in  the  absence  of  an  express  stipu- 
lation, these  circumstances  showed  that  the  parties  did  not 
regard  time  as  of  the  essence  of  the  contract.'  It  was 
agreed  in  a  contract  of  sale,  that  if  the  purchase  money 
was  not  paid  by  a  day  named,  which  was  about  two  years 
thereafter,  the  sale  should  be  void,  and  the  vendor  have  a 
right  to  enter  upon  the  premises  and  possess  the  improve- 
ments. The  vendee  expended  several  hundred  dollars  in 
improving  the  property,  but  failed  to  make  payment  at  the 
time  set.  It  was  held  that,  in  such  a  case,  a  waiver  w^ould 
be  inferred  from  slight  circumstances ;  that  if  the  vendor 
allowed  the  vendee  to  go  on  and  make  improvements  with- 
out warning,  after  the  time  for  payment  had  elapsed,  and  a 
right  to  the  forfeiture  had  accrued,  he  could  not  insist  on 
the  condition  as  to  time ;  and  that  upon  the  bill  of  the  ven- 


'  Mix  V.  Balduc,  78  111.,  213, 

2  Mathews  v.  Gillis,  i  Clark,  Iowa,  242.  Waiver  of  delay  by  a  vendor  accept- 
ing the  money  and  giving  a  receipt  for  it,  although  there  had  been,  as  to  a  por- 
tion of  the  payment,  both  delay  and  depreciation  of  the  property  in  value.  Hale 
V.  Wilkinson,  21  Gratt.,  75.  Cited  and  approved  in  Ambrose  v.  Keller,  22  lb., 
769.  Plaintiff's  bill  alleged  an  agreement  by  respondent  to  convey  a  patent 
right  to  the  plaintiff  for  a  sum  to  be  paid  in  instalments,  partly  in  cash  and 
partly  in  notes  ;  that  the  written  agreement  erroneously  made  the  whole  amount 
payable  in  cash,  and  that  another  agreement  was  thereafter  made  and  signed, 
making  the  amount  partly  payable  in  cash  and  partly  in  the  obligations  of  the 
plaintiff.  The  proof  showed  that  the  second  instrument  did  not  contain  a  state- 
ment of  all  the  material  provisions  designed  by  the  parties  to  be  included  in  the 
contract,  and  was  signed  by  the  respondent  upon  the  representation  of  the 
plaintiff  that  it  was  wholly  informal ;  that  the  respondent  did  not  agree  to  take 
the  plaintiff's  notes  without  security,  and  that  the  only  offer  on  the  part  of  the 
plaintiff  had  been  to  pay  part  cash  and  give  his  notes  for  the  balance.  It  was  held 
that  the  bill  could  not  be  maintained,  although  the  plaintiff  offered  to  perform 
whatever  the  court  should  order ;  it  appearing  that  the  suit  was  not  commenced 
until  long  after  the  proper  time  for  performance  on  his  part,  and  after  important 
changes  in  the  condition  of  the  parties.     Ely  v.  McKay,  12  Allen,  325. 

43 


674  LAPSE    OF   TIME  §§  48 1,  482. 

dee  tendering  payment,  and  praying  for  a  specific  perform- 
ance, or  a  rescission  upon  equitable  terms,  the  vendor  must 
either  fulfil,  by  conveying  the  land  according  to  the  con- 
tract upon  receiving  payment  of  the  purchase  money  and 
interest,  or  submit  to  a  rescission." 

§  481.  Giving  further  time. — The  waiver  may  consist  in 
the  extension  of  the  time  for  performance."  A  vendee 
took  possession  of  land  under  a  contract,  by  the  terms  of 
which  a  deed  was  to  be  delivered  and  the  money  paid  at  a 
future  time.  Before  the  time  designated,  payment  was  ex- 
tended, and  the  extension  having  passed,  the  vendor  re- 
ceived partial  payments,  and  the  vendee  asked  for  further 
time,  which  the  vendor  neither  granted  nor  refused,  and 
no  deed  was  afterward  made  or  money  tendered.  It  was 
held  that  the  contract  was  still  in  force.'  The  corporation 
of  the  city  of  New  York  having  sold  real  estate  at  auction, 
ten  per  cent,  of  the  purchase  money  was  paid  to  the  comp- 
troller. Completion  of  the  purchase  was  postponed  at  the 
request  of  the  comptroller ;  and,  a  new  comptroller  coming 
into  office,  completion  was  again  postponed  until  the  entry 
of  the  payment  of  ten  per  cent,  was  found ;  and  the  cor- 
poration then  refused  to  give  a  deed  of  the  land.  It  was 
held  that  the  corporation  was  bound  by  the  action  of  the 
comptroller,  and  that  the  statute  of  limitations  did  not  be- 
gin* to  run  against  the  suit  for  specific  performance  until 
the  refusal  to  give  a  deed." 

§  482.  Acts  of  party  constituting  waiver. — An  objection 
based  on  delay  will  be  waived  by  conduct  inconsistent  with 
the  intention  to  insist  on  it,  whether  time  were  originally 
of  the  essence  of  the  contract,  or  afterward  engrafted  on 
it ; '  as  by  continuing  to  negotiate  and  treating  the  contract 

'  Bellamy  v.  Ragsdale,  14  B.  Mon.,  364. 

"  Hull  V.  Sturdivant,  46  Me.,  34 ;  Schroeppel  v.  Hopper,  40  Barb.,  425  ;  Laird 
V.  Smith,  44  N.  Y.,  618;  Bass  v.  Gilliland,  5  Ala.,  76.  See  King  v.  Ruckman, 
24  N.  J.  Eq.,  556. 

'Wallace  v.  Pidge,  4  Mich.,  570.  *  Miller  v.  New  York,  53  Barb.,  653. 

^  King  V.  Wilson,  6  Beav.,  124;  Thompson  v.  Tod,  Pet.  C.  C,  280;  Vail  v. 
Nelson,  4  Rand,  478. 


§  4^2.  ACTS    OF    PARTY    CONSTITUTING    WAIVER.  675 

as  Still  in  existence  after  the  time  for  fulfilment  has  ex- 
pired.' So,  it  has  been  held  that  the  examination  of  the 
title  by  the  purchaser  after  the  day  for  completion  will 
prevent  his  insisting  on  time  as  essential,  even  though  a 
formal  notice  to  abandon  the  contract  may  have  been 
given.*  But  not  where  the  purchaser,  after  protesting 
against  the  delay,  treats  concerning  the  title  under  protest." 
Nor  can  a  person  who  prolongs  a  negotiation  for  the  mere 
purpose  of  gaining  time,  avail  himself  of  a  delay  thus 
caused."  Where  the  purchaser  has  gone  on  negotiating 
beyond  the  time  fixed,  he  must  give  a  reasonable  notice 
of  his  intention  to  abandon  his  contract  if  a  title  be  not 
shown.  Upon  a  contract  for  the  sale  of  a  house  needed 
for  immediate  residence,  the  conditions  w^ere  that  the  pur- 
chase should  be  completed  on  the  26th  of  February,  on 
which  day,  the  purchase  money  being  paid,  the  purchaser 
was  to  take  possession  ;  but  if,  from  any  cause  whatever, 
the  purchase  should  not  then  be  completed,  the  purchaser 
was  to  pay  interest  on  the  purchase  money  from  that  day 
until  completed  ;  and  if  any  objections  or  requisitions  as  to 
the  title  should  be  made  upon  the  delivery  of  the  abstract, 
which  the  vendor  was  unable  or  unwilling  to  remove,  the 
vendor  was  to  be  at  liberty  to  annul  the  contract.  The 
vendor  failed  to  complete  the  contract  by  the  day  named ; 
but  negotiations  were  continued  until  the  7th  of  April,  on 
which  day  notice  was  given  by  the  purchaser  of  immediate 
abandonment  of  the  contract.  Upon  a  bill  filed  by  the 
vendor  for  specific  performance,  it  was  held  that  as  a  pos- 
sible postponement  of  the  completion  of  the  contract  was 
contemplated  by  the  terms  of  the  agreement,  time  was  not 

'  Pincke  v.  Curteis,  4  Bro.  C.  C,  329;  Wood  v.  Bernal,  19  Ves.,  220;  South- 
comb  V.  Bishop  of  Exeter,  6  Hare,  213  ;  Webb  v.  Hughes,  L.  R,  10,  Eq.  281  ; 
Wiswall  V.  McGowan,  Hoff.  Ch.,  125;  Ramsey  v.  Brailsford,  2  Dessaus  Eq., 
582 ;  Voorhees  v.  De  Meyer,  2  Barb.,  37. 

•  Seton  V.  Slade,  7  Ves.,  265 ;  Hipwell  v.  Knight,  i  Y.  &  C.  Ex.,  401. 
^  Magennis  v.  Fallon,  2  Moll.,  561,  576. 

*  Morse  v.  Merest,  6  Mad.,  26;  Oriental  Steam  Co.  v.  Briggs,  21  L.  J.  Ch., 
241  ;  Gee  v.  Pearse,  2  De  G.  &  Sm.,  325. 


6']6  LAPSE    OF   TIME.  §  482. 

of  the  essence  of  the  contract,  and  that,  if  that  had  been 
the  case,  the  purchaser,  by  continuing  the  negotiations  as 
to  title  after  the  day  fixed  for  completion,  had  waived  it, 
and  could  not  rescind  without  reasonable  notice.  A  de- 
cree for  specific  performance,  with  inquiry  as  to  title,  was 
accordingly  rendered.'  With  reference  to  the  time  for 
payment,  where  the  assignor  of  a  lease  claimed  that  the 
assignment  had  been  forfeited  by  the  non-payment  of  part 
of  the  purchase  money  at  the  time  agreed,  he  was  held  to 
have  waived  the  forfeiture  by  getting  the  assignee  to  pay 
the  rent  to  the  landlord,  which  was  inconsistent  with  the 
claim  that  the  agreement  was  at  an  end."  Where  it  w^as 
agreed  that  if  the  balance  of  the  purchase  money  were  not 
paid  by  a  certain  time,  the  contract  should  be  void ;  and  it 
was  not  paid,  but  the  vendor  permitted  the  purchaser  to 
remain  in  possession,  and  took  from  him  a  warrant  of  at- 
torney to  confess  judgment  in  ejectment,  the  condition  was 
held  waived."  A  subsequent  correspondence  as  to  the  title 
was  held  to  be  a  waiver  as  to  the  time  for  raising  objec- 
tions.' And  the  same  was  held  to  result  from  the  subse- 
quent renewal  of  a  negotiation  as  to  price.'  It  does  not  fol- 
low that  because  a  party  has  waived  the  time  within  which 
an  act  is  to  be  done,  he  has  also  waived  the  act.  Accord- 
ingly, where  a  contract  was  entered  into  between  A.  and 

^  Webb  V.  Hughes,  supra. 

'  Hudson  V.  Bartram,  3  Mad.,  440.  As  to  the  effect  of  part  payment  on  the 
rights  of  the  purchaser,  see  Keegan  v.  Williams,  22  Iowa,  378. 

*  Gardner,  ex  parte,  4  Y.  &  C.  Ex.,  503.  A  vendor  of  certain  lots,  who  had 
given  a  bond  for  title,  recovered  judgment  for  the  unpaid  purchase  money,  and 
sold  the  lots  with  others,  realizing  nearly  the  full  amount  from  the  sale  of  the 
other  lots,  bought  them  himself,  satisfied  the  judgment,  and  took  a  sherift's 
deed.  It  was  held  that  as  the  vendor  had  elected  to  hold  the  vendee  to  a  per- 
formance of  the  contract  by  suing  for  and  collecting  the  money  due  thereon,  the 
vendee  v\as  entitled  to  a  conveyance  upon  payment  of  the  balance  due  after  the 
vendor's  accounting  for  the  money  received  for  the  other  lots  sold  under  the 
judgment.  Wright  v.  Leclaire,  3  Clarke,  Iowa,  221.  In  another  case,  where, 
after  a  delay  of  several  years  by  the  purchaser  to  fulfil  on  his  part,  the  vendor 
recognized  the  obligation  of  the  contract  by  an  action  to  enforce  a  lien  for  the 
purchase  money,  and  the  vendee,  answering  to  that  action,  offered  to  perform, 
it  was  held  that  the  vendor  could  not  be  heard  to  object  on  account  of  the  delay. 
Bennett  v.  Welch,  25  Ind.,  140. 

«  Cutts  V.  Thodey,  13  Sim.,  206.      '  Eads  v.  Williams,  4  De  G.  M.  &  G.,  674. 


§  483-  WAIVER    BY    SILENCE    OF    PARTY.  6'J'J 

B.,  that  the  former  should  repair  certain  warehouses  by  the 
I  St  of  April,  and  that  the  latter  should  then  take  a  lease  of 
them,  and  the  repairs  were  not  made  by  the  day  named, 
and  B.  continued  to  deal  in  a  way  which  amounted  to  a 
waiver  of  the  time,  and  before  the  lease  was  executed  the 
warehouses  were  destroyed  by  fire,  it  was  held  that  B.  had 
not  waived  the  condition  that  the  repairs  should  be  made 
previous  to  his  taking  a  lease,  and  that  therefore  the  loss 
must  be  borne  by  A/ 

§  483.  Waiver  by  silence  of  party. — A  waiver  may  be  im- 
plied from  a  silent  acquiescence  in  the  delay  \'  as  by  remain- 
ing in  possession  under  a  contract  for  a  lease  without  demand- 
ing the  lease/  In  August,  1856,  the  plaintiff  agreed  to  let 
a  house  to  the  defendant  for  seven,  fourteen,  or  twenty-one 
years,  the  defendant  to  keep  the  premises  in  repair,  and 
paint  and  paper ;  and  the  defendant  was  allowed  to  take 
possession.  In  1859  ^^  plaintiff  agreed  to  accept  W.  as 
tenant  in  the  defendant's  place  upon  the  same  terms,  the 
defendant  guaranteeing  the  rent.  Just  previous  to  this,  the 
defendant  had  given  W.  possession,  and  the  latter  paid  the 
rent  until  1863.  In  that  year,  the  defendant  gave  notice 
to  determine  the  tenancy  at  the  end  of  the  first  seven 
years.  W.  and  the  defendant  having  both  denied  their  lia- 
bility to  paint  and  paper  according  to  the  terms  of  the  orig- 
inal agreement,  the  plaintiff,  in  1864,  filed  a  bill  to  compel 
the  defendant  to  accept  a  lease.  It  was  held  that,  even  if 
the  original  agreement  was  not  terminated  by  that  of  1859, 
the  plaintiff,  after  such  delay  and  acquiescence,  could  not 
have  specific  performance.  The  bill  was  accordingly  dis- 
missed, but  without  costs,  and  without  prejudice  to  any 


•  Counter  v.  McPherson,  5  Moo.  P.  C.  C,  83 

2  Pincke  v,  Curteis,  s^lpra  ;  Potter  v.  Jacobs,  1 1 1  Mass.,  32.  The  giving  up  of  a 
contract  for  the  sale  of  land,  deliberately  and  designedly,  for  the  purpose  of  hav- 
ing it  cancelled  and  destroyed,  might  bar  a  suit  for  specific  performance.  But 
not  the  sending  of  it  to  the  vendor  at  his  request  without  saying  or  agreeing 
anything  as  to  its  being  surrendered,  cancelled,  or  destroyed.  De  Camp  v. 
Crane,  19  N.  J.  Eq.,  166. 

^  Sharp  v.  Milligan,  22  Beav.,  606. 


6-/8  LAPSE    OF    TIME.  §  483. 

remedy  at  law.'  Where  a  purchaser,  having  taken  posses- 
sion of  the  land,  paid  part  of  the  price,  stipulated  for  the 
highest  rate  of  interest  on  the  balance,  and  made  valuable 
improvements,  and  the  vendor  took  no  steps  to  demand  or 
collect  the  residue,  and,  three  months  after  the  last  payment 
was  due,  the  vendee  filed  a  bill  for  specific  performance,  a 
decree  was  granted."  When  time  is  made  essential  by  the 
act  of  one  of  the  parties  fixing  a  reasonable  time  for  the 
completion  of  the  contract,  and  giving  notice  to  the  other 
party  of  an  intention  to  abandon  the  contract  unless  it  is 
completed  within  the  time  fixed,  if  the  latter  does  not  assert 
his  rights  promptly  thereafter,  he  will  be  deemed  to  have 
acquiesced  in  the  notice,  and  to  have  abandoned  his  right 
to  the  equitable  remedy.'  In  one  case,  a  delay  of  two  years 
in  bringing  a  suit  after  such  notice,  was  held  to  deprive  the 
plaintiff  of  the  right  to  relief.*  In  another  case,  a  year's  de- 
lay was  considered  to  have  the  like  effect.'  A  purchaser 
of  land,  having  made  a  small  payment  at  the  time  of  the 
contract,  did  not  meet  his  subsequent  instalments,  and,  sev- 
eral years  afterward,  the  vendor  notified  him  that  the  con- 
tract had  long  been  forfeited,  and  the  vendee  took  no  steps 
to  enforce  the  sale  until  three  years  subsequent  to  such  no- 
tice, the  land  in  the  meantime  having  become  more  valua- 
ble, and  been  sold  again  by  the  vendor.  It  was  held  that 
the  vendee  was  not  entitled  to  specific  performance.'  Ac- 
quiescence, by  a  party  not  in  possession,  in  such  notice,  by 
a  comparatively  brief  delay,  may  bar  his  right.'  Where  real 
estate  was  likely  to  rise  in  value  in  the  course  of  a  few  days, 
and  the  vendee,  being  notified  on  Saturday  that  the  contract 
was  at  an  end  and  could  not  be  renewed  except  at  an  ad- 


'  Moore  v.  Marrable,  L.  R.  i,  Ch.  217.  -  Brink  v.  Morton,  2  Iowa,  411. 

^  Reynolds  v.  Nelson,  6  Mad.,  18  ;  Wells  v.  Maxwell,  32  Beav.,  408  ;  Prothro 
V.  Smith,  6  Rich.  Eq.,  324. 

*  Heaphy  v.  Hill,  2  Sim.  &  Stu.,  29. 

*  Watson  V.  Reid,  i  R.  &  M.,  236.     And  see  Parkin  v.  Thorold,  16  Beav.,  73. 
°  Smith  V.  Lawrence,  15  Mich., 499.     '  McDermidv.  McGregor,  21  Minn.,  in. 


§  4^3*  WAIVER    BY    SILENCE    OF    PARTY.  679 

vanced  price,  made  no  objection,  and  the  vendor  sold  the 
property  to  a  third  person  on  Tuesday,  a  suit  for  specific 
performance  brought  by  the  original  purchaser  was  dis- 
missed/ But  a  notice  of  forfeiture  may  itself  be  waived, 
by  continuing  the  transaction  after  the  time  named/ 

'  Hawley  v.  Jelly,  25  Mich.,  94.  ^  King  v.  Wilson,  6  Beav.,  124. 


CHAPTER   XVII. 

DETERMINATION    OF    CONTRACT. 

484.  Effect  in  general  of  entering  into  new  agreement. 

485.  Consequence  of  bringing  in  another  party. 

486.  When  new  agreement  may  be  verbal,  or  implied  from  conduct. 

487.  Parol  agreement  with  part  performance. 

488.  Altering  contract  without  rescinding  it. 

489.  Contract  may  be  rescinded  by  parol. 

490.  What  in  general  essential  to  constitute  a  rescission. 

491.  Rescission  of  contract  after  breach. 

492.  Entire  contract  must  be  rescinded. 

493.  Acts  indicating  a  rescission  of  contract. 

494.  Contract  must  have  been  given  up  by  both  parties. 

495.  When  party  may  elect  to  rescind  contract. 

496.  Election  to  rescind  must  be  made  promptly. 

497.  Waiver  of  right  to  rescind. 

498.  Agreement  for  compensation  and  rescission. 

§  484.  Mode  of  effecting. — It  may  constitute  a  defence 
that,  although  such  a  contract  as  is  sought  to  be  enforced  was 
entered  into  between  the  parties,  yet  it  no  longer  exists.  In 
other  words,  it  may  be  contended,  either  that  a  new  agree- 
ment was  substituted,  or  that  the  contract  was  rescinded  by 
mutual  consent.  As  a  rule,  the  parties,  if  they  continue  sui 
j'tcrzs,  and  capable  of  contracting,  rilay  determine  the  con- 
tract in  either  of  these  modes.'  Of  course,  after  the  de- 
livery of  a  second  contract  which  has  been  substituted  for 
the  previous  one,  the  first  contract  has  no  force  or  effect, 
and,  by  its  assignment,  a  party  can  convey  no  rights  to  his 
assignee."     A  vendee  of  land  having  failed  to  comply  with 

'  In  certain  cases,  a  subsequent  agreement  to  annuT  a  previous  one,  will  be 
inoperative.  A  debt  cannot  be  absolved  by  a  stipulation  to  take  a  less  sum. 
Inman  v.  Griswold,  i  Cowen,  199  ;  Makepeace  v.  Harvard  College,  10  Pick.,  298  ; 
Geisner  v.  Kershner,  4  Gill  &  Johns,  305.  But  an  agreement  by  a  creditor  with 
his  insolvent  debtor,  that  if  the  latter  will  give  security  for  a  portion  of  the  debt, 
the  former  will  release  the  balance,  is  a  valid  contract.  Colborn  v.  Gould,  i  N, 
H.,  279. 

"  McDonald  v.  Kneeland,  5  Minn.,  352  ;  Bagley  v.  Clark,  7  Bosw.,  94  ;  Mun- 
ford  V.  Wilson,  15  Mo.,  540;  Lafferty  v.  Jelly,  21  Ind.,  471.  See  Pierce  v.  Dorr, 
8  Pick.,  239.     When  a  new  contract  is  inconsistent  with,  and  renders  the  per- 


§  485-  BRINGING    IN    ANOTHER    PARTY.  68 1 

the  terms  of  the  contract  of  sale,  the  parties  entered  into  a 
new  agreement,  which  was  left  in  escrow,  to  be  in  force 
upon  the  performance  of  certain  conditions  which  were  not 
fulfilled.  It  was  held  thai;  as  the  second  agreement  was  a 
substitute  for  the  first  and  was  not  fulfilled,  there  was  no 
contract  which  the  vendor  could  be  compelled  to  perform.' 
A  contract  for  the  sale  of  land  by  A.  to  B.,  for  which  B. 
gave  A.  his  promissory  note  payable  at  a  future  day  with 
interest,  provided  that  if  the  note  were  paid  at  maturity, 
the  property  should  be  conveyed  to  B.  B.  took  possession 
of  the  premises  under  a  lease,  and  agreed  to  pay  a  certain 
rent  if  he  did  not  take  up  the  note  when  it  was  due.  The 
note  not  having  been  paid,  and  the  relation  of  landlord  and 
tenant  established,  it  was  held  that  it  operated  as  a  disaffirm- 
ance of  the  contract  of  sale."  Where  a  lessee,  before  the 
expiration  of  his  term,  takes  a  new  lease,  it  is  virtually  a 
surrender  of  the  previous  lease.  Such  is  the  presumption 
from  the  second  lease,  because  its  acceptance  is  an  admission 
by  the  lessee  of  the  right  and  power  of  the  lessor  to  make 
it.  When,  however,  the  circumstances  show  that  it  was  not 
the  intention  of  the  parties  to  make  such  a  surrender,  the 
presumption  will  be  overcome.' 

§  485.  Bringing  hi  another  party. — The  introduction  of 
another  party  terminates  the  original  agreement  by  estab- 
lishing a  contract  between  one  of  the  original  contractors 
and  the  new  person.  Accordingly,  where  A.  sold  shares  to 
B.  and  B.  sold  them  toC,  and  A.  transferred  them  by  deed 
to  C,  which  C.  refused  to  register,  it  was  held  in  a  suit  for 
specific  performance  brought  by  A.  against  B.,  that  A,,  by 
assigning  the  shares  to  C,  determined  the  privity  of  con- 
tract with  B.,  and  that  C.  was  not  the  mere  nominee  of  B., 
but  that  there  was  a  substantive  contract  between  A.  and 

formance  of  a  former  one  between  the  parties  impossible,  the  former  is  rescinded, 
upon  the  same  principle  that  a  subsequent  act  of  the  Legislature  repeals  a  former 
act  when  the  two  are  inconsistent.     Paul  v.  Meservey,  58  Me.,  419. 

1  Price  V.  McGown,  10  N.  Y.,  465,  ^  Porter  v.  Vaughn,  26  Vt.,  624. 

^  Livingston  v.  Potts,  16  Johns,  28 ;  Van  Rennsselaer  v.  Penniman,  6  Wend., 
569;  Abell  V.  Williams,  3  Daly,  17, 


682  DETERMINATION  OF  CONTRACT.         §  486. 

C  Where  A.  and  B.  agreed  in  writing  to  compromise 
their  conflicting  land  claims,  and  B.  sold  to  C,  and  C.  to 
others,  without  any  reservation  as  to  the  rights  of  A.,  it  was 
held  that  equity  would  not  aid  C.  in  enforcing  the  original 
agreement ;  the  course  pursued  by  the  parties  evincing  an 
intention  to  abandon  it." 

§  486.  Validity  of  second  agree'me7it  and  how  made. — ■ 
The  new  contract,  to  work  a  rescission  of  the  old  one,  must 
be  supported  by  some  consideration,  and  be  otherwise  valid 
and  binding.'  Where  a  person,  having  contracted  to  fur- 
nish materials  and  construct  a  building,  refused  to  proceed 
in  consequence  of  the  rise  in  prices,  and  the  other  party 
told  him  to  go  on  and  complete  the  work  and  he  would 
pay  him  for  it  what  was  right,  it  was  held  that  the  mutual 
promises  formed  a  sufficient  consideration  to  support  the 
new  contract."  If  an  agreement  which  would  have  been 
legal  if  verbal,  is  nevertheless  in  writing,  the  new  agree- 
ment need  not  necessarily  be  written."  A  written  agreement 
not  required  by  law  to  be  in  writing,  may  be  varied  or 
qualified  at  any  time  before  a  breach  of  it  by  a  new  con- 
tract not  in  writii;ig,  which  can  be  proved  partly  by  the 
written  agreement,  and  partly  by  the  subsequent  verbal 
terms  engrafted  on  what  will  then  be  left  of  the  written 
contract."     A  contract  between  parties  was  mutual,  and  to 


1  Shaw  V.  Fisher,  5  De  G.  M.  &  G.,  596  ;  Holden  v.  Hayn,  i  Mer.,  47  ;  Hall  v. 
Laver,  3  Y.  &  C.  Ex.,  191  ;  Stanley  v.  Chester  &  Birkenhead  R.R.  Co.,  9  Sim., 
264 ;  S.  C,  3  My.  &  Cr.,  773. 

^  Mclntire  v.  Johnson,  4  Bibb.,  48. 

'  Robson  V.  Collins,  7  Ves.,  130 ;  Thurston  v.  Ludwig,  6  Ohio  St.,  i. 

*  Bishop  V.  Busse,  69  111.,  403. 

'  Henning  v.  U.  S.  Ins.  Co.,  47  Mo.,  425  ;    Ryno  v.  Darby,  20  N.  J.  Eq.,  231. 

^  Hewitt  V.  Brown,  21  Minn.,  163.  It  is  competent  to  add  to  or  vary  a  writ- 
ten contract  by  a  subsequent  verbal  agreement  made  on  the  same  occasion  be- 
fore the  parties  separate,  and  following  immediately  upon  the  execution  of  the 
written  contract,  when  the  verbal  agreement  is  within  the  scope  of  what  the 
written  contract  contemplated  might  thereafter  be  verbally  agreed  upon  by  the 
parties.  Field  v.  Mann,  42  Vt.,  61.  An  alteration  of  an  instrument  under  seal 
by  parol,  makes  the  whole  contract  parol.  In  such  case,  the  terms  of  the  writ- 
ten instrument  are  in  effect  adopted,  and  become  a  part  of  the  parol  agreement. 
Vicary  v.  Moore,  2  Watts,  451  ;  Vaughn  v.  Ferris,  2  Watts  &  Serg.,  46 ;  Car- 
rier V.  Dilworth,  59  Pa.  St.,  406. 


§  487'        PART    PERFORMANCE    OF    NEW    AGREEMENT.  683 

be  performed  by  each  at  the  same  time.  The  plaintiffs 
bound  themselves  to  deliver  certain  bonds  on  a  day  named 
in  the  contract,  at  which  time  the  defendant  was  to  pay  the 
purchase  price.  After  the  contract  was  made,  and  before 
its  maturity,  the  parties  fixed  on  an  hour  when  they  would 
meet  at  the  office  of  the  plaintiffs  on  the  day  the  contract 
matured,  to  perform  it.  It  was  held  that  this  became  a 
part  of  the  agreement  between  them,  and  had  the  same 
force  and  effect  as  if  the  particular  time  and  place  of  per- 
formance had  been  named  in  the  original  contract.'  In 
equity,  a  WTitten  agreement  may  be  changed  by  conduct 
creating  the  presumption  of  a  new  contract.  "  In  ordinary 
partnerships  nothing  is  more  common  than  this,  that  though 
partners  enter  into  a  written  agreement  stating  the  terms 
upon  which  the  joint  concern  is  to  be  carried  on,  yet  if 
there  be  a  long  course  of  dealing,  or  a  course  of  dealing 
not  long,  but  still  so  long  as  to  demonstrate  that  they  have 
all  agreed  to  change  the  terms  of  the  original  written  agree- 
ment, they  may  be  held  to  have  changed  these  terms  by 
conduct."'  In  a  case  in  which  it  was  decreed  that  an 
agreement  for  a  partnership  should  be  specifically  enforced, 
the  court  directed  an  inquiry  whether  any,  and  what, 
changes  had  been  made  in  the  original  agreement  by  the 
consent  of  the  partners,  and  that  the  deed  should  be  set- 
tled by  the  master  in  accordance  with  such  changes.'  Where 
a  parol  agreement  is  followed  by  one  in  writing,  the  latter 
supersedes  the  former,  and  constitutes  the  only  agreement 
between  the  parties ;  the  parol  agreement  being  regarded 
as  mere  treaty.* 

§  487.  Part  perforina7ice  of  new  agreement. — When  the 
first  contract  is  required  by  law  to  be  in  writing,  the  second 
one  must  also  be  in  writing.     If,  for  instance,  the  relation 

'  Levy  V.  Burgess,  64  N.  Y.,  390. 

"  Lord  Eldon,  in  Const  v.  Harris,  T.  &  R.,  496,  57,3  ;  Geddes  v.  Wallace,  2 
Bligh,  270,  297 ;  Jackson  v.  Sedgwick,  i  Swanst.,  460 ;  Smith  v.  Jeyes,  4 
Beav.,  505. 

^England  v.  Curling,  8  Beav.,  129.  "  Smith  v,  Henley,  i  Ph.,  391. 


684  DETERMINATION  OF  CONTRACT.         §  488. 

of  landlord  and  tenant  is  created  by  writing,  an  agreement 
for  an  abatement  of  rent  must  be  in  waiting.'  The  new 
contract  may,  however,  be  by  parol,  notwithstanding  the 
original  one  was  in  writing,  if  supported  by  acts  of  part 
performance.'  Accordingly,  where  a  lease  of  a  house  for 
eleven  years,  with  the  allowance  of  twenty  pounds  for  re- 
pairs, was  signed  and  sealed  by  the  parties,  and  the  lessee, 
finding  that  the  repairs  of  the  house  would  cost  more  than 
twenty  pounds,  expended  a  further  sum  in  consequence  of 
the  promise  of  the  lessor  to  enlarge  the  term,  but  without 
specifying  for  what  term,  the  parol  agreement  was  enforced 
on  the  ground  that  the  laying  out  of  the  money  was  a  part 
performance  on  the  one  part,  which  called  for  the  perform- 
ance of  the  parol  agreement  on  the  other.' 

§  488.  Making  alterations  ijt  contract. — Parties  may, 
and  often  do,  stipulate  for  some  change  in  the  terms  of  a 
contract,  without  having  the  arrangement  amount  to  the 
substitution  of  a  new  agreement ;  as,  for  instance,  for  a  re- 
duction of  rent.  In  a  case  of  this  kind,  Lord  St.  Leonards 
said  :  "  I  should  be  sorry  to  hold,  that  because  a  landlord 
abates  the  rent  for  a  time,  or  permanently,  he  therefore 
abandons  the  whole  contract  ....  I  should  do  a  most 
mischievous  thing,  w^ere  I  to  hold  that  a  mere  abatement 
of  rent,  which  occurs  every  day,  would  altogether  put  an 
end  to  the  existing  contract,  and  create  a  new  tenancy  from 
year  to  year.  The  abatement  of  the  rent  was  rather  a  con- 
firmation of  the  existing  tenancy,  with  a  relaxation  of  one 
of  the  terms  of  it."'     So  a  contract  will  not  be  rescinded 

'  O'Connor  v.  Spaight,  i  Sch.  &  Lef.,  305. 

="  Wallis  V.  Long,  16  Ala.,  738.  See  Adams  v.  Nicholas,  19  Pick.,  275  ;  Hunt 
V.  Barfield,  19  Ala.,  117. 

3  5  Vin.  Abr.  522,  Pi.  38.  Where  parties  made  a  new  agreement  revoking 
an  old  one  under  which  land  had  been  conveyed,  and  a  house  was  paid  as  part 
of  the  consideration  of  the  new  agreement,  it  was  held  that  one  of  the  parties 
could  not  refuse  to  fulfil  because  the  other  had  not  executed  a  reconveyance  of 
the  land,  no  time  having  been  fixed  for  that  purpose.  It  was  also  held  that  a 
tender  of  the  reconveyance  was  not  an  indispensable  preliminary  to  the  enforce- 
ment of  the  new  agreement,  and  that  the  parties  must  be  restored  to  their  orig- 
inal rights  before  either  could  insist  upon  a  rescission  of  the  new  contract. 
Anderson  v.  White,  27  III,  57. 

*  Clarke  v.  Moore,  i  Jon.  &  Lat.,  723. 


§  489-  HOW    CONTRACT    MAY    BE    RESCINDED.  685 

by  the  suggestion  of  changes  in  it  by  a  party  for  the  pur- 
pose of  facilitating  its  performance ;  otherwise,  parties 
w^ould  be  deterred  from  making  concessions  of  any  kind/ 

§  489.  How  contract  7nay  be  rescinded. — As  a  general 
rule,  contracts  can  only  be  rescinded  by  the  mutual  con- 
sent of  the  parties."  Whatever  will  operate  to  discharge  a 
contract  according  to  the  law  of  the  place  where  it  is  made 
or  to  be  performed,  will  discharge  it  everywhere."  A  con- 
tract which  is  required  by  law  to  be  in  writing,  may  in 
equity  be  rescinded  by  parol ; '  and  waiver  by  parol  is 
therefore  a  sufficient  answer  to  a  bill  for  specific  perform- 
ance,' rescission  or  waiver  being  in  its  nature  subsequent 
and  collateral  to  the  agreement ; '  although  it  has  been 
claimed  that  an  agreement  to  waive  a  purchase  of  land  is 
as  much  an  agreement  concerning  land  as  the  original  con- 
tract.' Even  a  contract  under  seal  may  be  rescinded  in 
equity  by  a  parol  agreement.* 

^  Monro  v.  Taylor,  8  Hare,  51. 

^  Gatlin  v.  Wilcox,  26  Ark.,  309.  It  is  scarcely  necessary  to  say  that  this  rule 
has  its  exceptions.  Where  the  court  instructed  the  jury  that  it  was  competent 
for  the  parties  to  the  contract  to  put  an  end  to  it  by  their  mutual  understanding 
and  consent,  but  that  neither  could  do  it  without  the  consent  of  the  other,  it 
was  held  error ;  for  the  reason  that,  under  certain  circumstances,  one  of  the 
contracting  parties  may  rescind  without  the  consent  of  the  other  ;  as  where 
concurrent  acts  are  to  be  performed,  and  one  of  the  parties  refuses  to  perform 
his  part  of  the  contract.  Fletcher  v.  Cole,  23  Vt.,  114.  See  Davis  v.  Town- 
send,  10  Barb.,  333. 

^  Story's  Confl.  of  Laws,  Sec.  331  ;  Poe  v.  Duck,  5  Md.,  i. 

*  Goman  v.  Salisbury,  i  Vern.,  240 ;  Inge  v.  Lippingwell,  2  Dick.,  469  ;  11- 
chester,  ex  parte,  7  Ves.,  377  ;  Backhouse  v.  Mohun,  3  Swanst.,  434,  ;/.  /  Buck- 
house  V.  Crosby,  2  Eq.  Cas.  Abr.  32,  PI.  44. 

^  Robinson  v.  Page,  3  Russ.,  114. 

°  Davis  V.  Symonds,  i  Cox,  402  ;  Bell  v.  Howard,  9  Mod.,  305. 

'  Buckhouse  v.  Crosby,  supra,  per  Lord  Hardwicke. 

*  Hill  V.  Gomme,  l  Beav.,  540  ;  Lady  Lanesborough  v.  Ockshott,  i  Bro.  P.  C, 
151  ;  Keating  v.  Price,  i  Johns  Ch.,  22  ;  Erwin  v.  Saunders,  i  Cowen,  250;  Low 
V.  Treadwell,  12  Me.,  441  ;  Cummings  v.  Arnold,  3  Mete,  486;  Guthrie  v. 
Thompson,  i  Oregon,  353.  As  to  whether  the  parol  waiver  or  abandonment  of 
a  written  contract  would  constitute  a  defence  at  law,  see  Price  v.  Dyer,  17  Ves., 
356 ;  Goss  v.  Lord  Nugent,  5  B.  &  Ad.,  58  ;  Harvey  v.  Grabham,  5  A.  &  E.,  61. 
Although,  independently  of  the  statute  of  frauds,  the  variation  of  a  written 
agreement  cannot  be  proved  by  parol,  yet  parol  evidence  is  admissible  of  mat- 
ters collateral  to  the  contract.  Thus,  it  may  be  shown  by  parol  that  an  instru- 
ment purporting  to  be  an  agreement  was  signed  conditionally,  and.  so  only  in 
the  nature  of  an  escrow ;  this  being  a  question  dehors  the  writing.  Pym  v. 
Campbell,  6  Ell.  &  Bl ,  370.     An  oral  promise  made  by  a  mortgagee  to  the  cred- 


686  DETERMINATION  OF  CONTRACT.         §  49O. 

§  490.  Fact  of  rescission  hoiv  established. — A  negotia- 
tion for  the  abandonment  of  the  agreement  will  not  con- 
stitute a  rescission  of  it,  unless  the  circumstances  show  an 
intention  of  the  parties  that  there  should  be  an  absolute 
abandonment  and  dissolution  of  the  contract.'  A  party 
cannot  treat  the  contract  as  binding  and  rescinded  at  the 
same  time  ; "  but  the  parties  must  be  deemed  to  have  been 
restored  to  the  condition  in  which  they  stood  immediately 
before  the  contract  was  made.'  When  the  alleged  agree- 
ment to  rescind  rests  only  in  parol,  it  must  be  proved  by 
acts  which  leave  no  doubt  of  the  intent :  such  as  cancelling 
the  agreement  or  removing  from  the  possession  ; '  or,  at 

itors  of  the  mortgagor  to  abandon  his  claim  to  the  mortgaged  premises  provided 
they  accept  from  the  mortgagor  another  mortgage,  and  extend  his  time  of  pay- 
ment, is  void  by  the  statute  of  frauds,  and,  notwithstanding  the  creditors  com- 
ply with  the  conditions  of  the  promise,  they  acquire  thereby  no  right  as  against 
the  original  mortgagee.  Parker  v.  Barker,  2  Mete,  423.  At  common  law, 
parties  cannot  abrogate  or  modify  a  contract  under  seal,  except  by  an  instrument 
of  the  same  character.  Contracts  in  writing  not  under  seal,  and  verbal  agree- 
ments, are  called  parol  contracts,  and  placed  on  the  same  footing.  Verbal 
agreements  are  of  as  high  a  grade  as  writings  not  under  seal,  and  are  subject  to 
release,  abrogation,  or  modification,  by  an  agreement  either  verbal  or  written. 
Bishop  V.  Busse,  69  111.,  403  ;  Rhodes  v.  Thomas,  2  Carter,  Ind.,  638;  Sinard  v. 
Patterson,  3  Blackf.,  353;  Smith  v.  Addleman,  7  lb.,  119;  Woodruff  v.  Dob- 
bins, lb.,  582.  If  the  contract  varying  the  terms  of  or  abrogating  the  sealed  in- 
strument has  been  performed,  a  defence  founded  upon  such  a  change  is  sus- 
tained by  the  highest  equity. 

'  Robinson  v.  Page,  3  Russ.,  114;  Murray  v.  Harway,  56  N.  Y.,  337. 

"  Weeks  v.  Robie,  42  N.  H.,  316. 

°  Hunt  V.  Silk,  5  East.,  449  ;  Espy  v.  Anderson,  14  Pa.  St ,  308 ;  Conner  v. 
Henderson,  6  Gill  &  Johns,  424  ;  Battle  v.  Rochester  City  Bank,  3  Comst.,  88. 
An  agreement  to  rescind  may  of  course  provide  that  a  party  shall  not  be  re- 
stored to  his  former  situation.  Under  a  contract  for  the  sale  of  land  for  the 
sum  of  twenty-five  thousand  dollars,  four  thousand  dollars  of  which  was  to  be 
paid  down,  and  the  balance  in  two  instalments,  the  first  payment  was  made, 
and  afterward  the  parties  indorsed  on  the  contract  the  following :  "  For  value 
received,  we  hereby  cancel  the  annexed  and  within  agreement,  and  mutually 
agree  to,  and  discharge  each  other  from  all  the  covenants  and  agreements 
therein  contained  ;  and  the  said  Winton,  the  purchaser,  hereby  surrenders  pos- 
session of  the  within  described  premises  to  the  said  Spring."  It  was  held  that, 
the  agreement  being  canceled,  the  effect  was  not,  as  in  the  ordinary  case  of  a 
rescission  of  a  contract,  to  put  the  parties  in  statu  quo,  and  that  the  purchaser 
was  not  entitled  to  a  return  of  the  four  thousand  dollars  he  had  paid  in  part 
performance  of  the  contract.     Winton  v.  Spring,  18  Cal.,  451. 

■*  Lauer  v.  Lee,  42  Pa.  St.,  165  ;  Washington  v.  M'Gee,  7  T.  B.  Mon.,  131  ; 
Phelps  V.  Seely,  22  Gratt.,  573.  To  justify  the  divesting  of  a  title  to  land  on 
parol  evidence  that  the  deed  of  the  same  by  mutual  agreement  was  given  up  by 
the  grantee  to  be  cancelled,  but  afterward,  without  the  knowledge  or  consent  of 
the  grantor,  recorded,  the  preponderance  of  proof  should  be  clear,  and  the  evi- 
dence so  convincing  as  to  leave  no  reasonable  doubt  on  the  mind.  Hunter  v. 
Hopkins,  12  Mich.,  227.  As  to  what  was  deemed  insufficient  proof  of  the  re- 
scission of  a  sale  of  land,  see  Pipkin  v.  Allen,  24  Mo.,  520. 


§  491-     PAROL  AGREEMENT  TO  CANCEL  CONTRACT.      6^'J 

least,  if  the  agreement  is  unexecuted,  it  must  be  founded 
upon  a  new  consideration,  and  be  clearly  proved/  It  would 
be  a  sufficient  consideration  that  by  the  parol  agreement 
the  party  was  induced  to  enter  into  engagements  inconsist- 
ent with  the  performance  of  the  original  contract." 

§  49 1 .  Parol  agreement  to  cancel  contract  of  sale. — After 
a  simple  contract  is  broken  and  damage  thereby  accrued, 
it  cannot  be  discharged  by  parol  without  satisfaction  or 
some  consideration.  But  if  the  new  agreement  is  upon  a 
good  consideration  and  performed  by  the  defendant,  it  is  a 
satisfaction  and  defence ;  and  it  makes  no  difference  that 
the  prior  agreement  is  in  writing  and  the  new  agreement 
verbal.'  Although  a  mere  verbal  promise  after  breach  to 
cancel  a  contract  of  sale  would  be  no  defence  to  a  suit  upon 
it,  yet  if  the  contract  were  actually  cancelled  and  the  prop- 
erty surrendered,  the  contract  would  be  at  an  end.  The 
effect  of  such  executed  agreement  is  the  same,  whether  the 
contract  is  sealed  or  unsealed.  The  obligation  has  then 
become  discharged  by  the  acts,  rather  than  by  the  agree- 
ment of  the  parties.  It  is  not  always  necessary  that  the 
instrument  should  be  given  up  to  be  cancelled  ;  though  that 
would  show  conclusively  the  fact  of  rescission.  On  the 
other  hand,  if  the  contract  remain  in  the  possession  of  the 
parties  as  before,  with  no  reason  why  it  was  not  surren- 
dered or  cancelled  on  its  face,  especially  if  no  change  of 
possession  has  taken  place,  it  would  be  a  strong  circum- 
stance against  the  claim  of  rescission.'     C.  sold  to  P.  an 

'  Pratt  V.  Morrow,  45  Mo.,  404.  The  consideration  which  gives  validity  to  an 
agreement  to  rescind  is  the  release  and  extinguishment  of  the  former  contract. 
Locomotive  &  Express  Co.  v.  Erie  R.R.  Co.,  37  N.  J.,  23 ;  Cutter  v.  Cockrane, 
116  Mass.,  408. 

^  Huffman  v.  Hummer,  18  N.  J.  Eq.,  83.  ^  Cutler  v.  Smith,  43  Vt.,  577. 

■•Pratt  v.  Morrow,  45  Mo.,  404.  In  Dearborn  v.  Cross,  7  Cowen,  48,  the 
plaintiff  sold  certain  real  estate  to  the  defendant,  gave  him  a  bond  to  make  title, 
took  from  him  his  several  promissory  notes,  and  put  him  in  possession.  An  ac- 
tion having  afterward  been  brought  on  one  of  the  notes,  the  defence  was,  that 
the  contract  of  sale  had  been  rescinded  by  a  verbal  agreement  between  the  par- 
ties ;  and  that  the  plaintiff,  pursuant  to  that  agreement,  and  with  the  defend- 
ant's consent,  had  re-entered,  rented  the  house,  and  iinally  sold  the  entire  prop- 
erty to  another  person.  The  title-bond  had,  howev^er,  never  been  surrendered 
or  cancelled.     It  was  held  that  the  contract  of  sale  had  been  discharged  by  the 


688  DETERMINATION  OF  CONTRACT.        §  492. 

undivided  half  of  a  parcel  of  land  upon  which  were  saw 
and  grist  mills,  the  price  being  paid  partly  in  cash  and 
partly  in  a  note,  and  C.  executed  a  title-bond  to  P.  P.  be- 
coming dissatisfied  with  the  business,  agreed  with  C.  for  a 
valuable  consideration  to  reconvey  his  interest  in  the  mills 
to  C.  C.  then  conducted  the  business.  Subsequently  P. 
conveyed  to  B.,  who  filed  his  bill  against  C.  for  specific 
performance  of  the  first  contract,  which  was  resisted  by  the 
heirs  of  C,  who  filed  a  cross  bill  for  specific  performance 
of  the  second  contract.  It  was  held  error  to  vest  B.  with 
title  regardless  of  the  second  contract  which  had  been 
partly  performed  by  C."  Where  A.  agreed  in  writing  to 
sell  land  to  B.,  who  went  into  possession,  but,  being  un- 
able to  pay  for  it,  abandoned  the  land,  and  consented  that 
A.  might  sell  it  to  C,  who  took  possession  under  a  verbal 
contract,  but  afterward  gave  it  up  without  having  made 
any  payments,  and  A.  resumed  possession,  it  was  held  that 
a  purchaser  of  both  such  contracts  of  sale  could  not  enforce 
specific  performance  of  either.'' 

§  492.  Whole  contract  to  be  given  up. — To  constitute 
the  rescission  of  a  WTitten  contract  by  a  parol  agreement, 
there  must  have  been  an  abandonment  of  the  entire  con- 
tract, and  not  merely  a  waiver  of  some  portions  of  it.' 
Under  a  contract  for  the  purchase  of  two  parcels  of  land 

new  parol  executed  agreement.  The  court  said  :  "  The  evidence  given,  and  that 
which  was  offered  to  be  given,  show  not  merely  an  executory  agreement  to  re- 
scind the  contract,  but  an  agreement  executed  and  carried  into  effect,  by  a  sur- 
render of  the  possession  and  a  subsequent  sale  of  the  premises.  The  defendant 
Cross  therefore  could  not  enforce  the  contract  against  the  plaintiff,  and  there 
seems  to  be  no  necessity  for  sending  him  to  a  court  of  equity  in  order  to  restrain 
the  plaintiff  from  collecting  the  notes  which  were  the  consideration  of  the  con- 
tract." 

'  Clark  V.  Barnett,  24  Ark.,  30. 

'^  Aldrich  v.  Putney,  11  Paige  Ch.,  204.  The  authorities  are  not  uniform  as  to 
the  effect  of  an  unexecuted  parol  agreement  to  rescind  a  sealed  contract  for  the 
sale  of  land  founded  upon  a  new  consideration.  But  the  better  opinion  is,  that 
such  agreements  are  valid.  After  a  contract  has  been  rescinded  it  cannot  be 
renewed  without  the  concurrence  of  both  of  the  parties.  Lassen  v.  Mitchell,  41 
111.,  loi.  A  rescission  of  one  contract  cannot  revive  another  agreement  pre- 
viously rescinded,  without  express  words  or  a  necessary  implication  to  that  ef- 
fect.    Oakley  v.  Ballard,  Hempstead  C.  C,  475. 

'  Goss  V.  Lord  Nugent,  5  B.  &  Ad.,  58  ;  Price  v.  Dyer,  17  Ves.,  356;  Robin- 
son v.  Page,  3  Russ.,  114.     But  see  Jordan  v.  Sawkins,  i  Ves.  Jun.,  404. 


§  493-       WHEN  ABANDONMENT  OF  CONTRACT  PRESUMED.       689 

for  a  specified  sum,  one  of  which  is  to  be  conveyed  at  the 
time,  and  the  other  upon  payment  for  both,  there  must  be 
a  rescission,  if  at  all,  as  to  both  parcels,  it  being  an  entire 
purchase,  notwithstanding  two-thirds  of  the  purchase 
money  are  to  be  applied  to  one  of  the  parcels/ 

§  493.  When  abando7tment  of  contract  presumed. — An 
agreement  to  rescind  the  contract  may  be  shown  by  circum- 
stances, or  by  such  a  course  of  conduct  as  clearly  indicates 
that  that  was  the  intention  of  the  parties.'  Very  slight  cir- 
cumstances will  be  sufficient  to  show  the  assent  of  a  party 
when  it  was  obviously  for  his  interest  that  the  contract 
should  be  terminated.'  There  is  no  fixed  rule  by  which  it 
can  be  determined  whether  or  not  a  contract  has  been 
abandoned.  Where  a  vendee  alleges  that  the  contract  has 
been  abandoned  by  the  vendor,  to  sustain  such  allegation, 
he  ought  to  show  that  the  vendor  committed  such  acts  as 
would  justify  a  reasonable  man  in  believing  that  he  ac- 
quiesced in  the  decision  of  the  vendee  to  abandon  the  con- 
tract." If  one  of  the  parties  fails  to  do  what  is  necessary  to 
enable  the  other  party  to  perform,  the  contract  may  be  con- 
sidered as  abrogated.'  So,  any  act  by  one  or  other  party, 
which  necessarily  prevents  the  performance  of  the  mutual 
undertaking,  will  constitute  an  abandonment.  Whenever 
the  conduct  of  either  party  can  be  viewed  in  no  other  aspect 
than  as  a  relinquishment  of  the  contract,  the  contract  will 
be  regarded  as  rescinded."  A.  and  B.,  who  were  husband 
and  wife,  entered  into  a  contract  with  C.  whereby  C.  was 
to  take  possession  of  and  manage  a  farm,  and  have  one-third 
of  the  profits,  and  A.  and  B.  the  remaining  two-thirds. 
Soon  after  taking  possession,  C.  sold  the  stock  on  the  farm 
and  the  farming  implements,  and  leased  the  farm  excepting 

1  Fay  V.  Oliver,  20  Vt.,  118.  An  agreement  to  set  aside  an  award  will  not 
have  the  effect  to  rescind  an  independent  and  distinct  contract,  though  relating 
to  the  subject  matter  of  the  controversy.     Siraplot  v.  Simplot,  14  Iowa,  449. 

"-  Wheeden  v.  Fiske,  50  N.  H.,  125  ;  Green  v.  Wells,  2  Cal.,  584. 

3  Fine  v.  Rogers,  50  N.  H.,  125.     See  Wyan  v.  Garland,  19  Ark.,  23. 

<  Garnett  v.  Macon,  2  Brock.,  185.  '  Chapin  v.  Butts,  6  McLean,  500. 

°  Suber  v.  Pullin,  i  S.  C,  N.  S.,  273  ;  Wright  v.  Haskell,  45  Mo.,  489. 

44 


690  DETERMINATION  OF  CONTRACT.         §  493, 

the  dwell ing-housc  and  grounds  around  it.  A  few  months 
subsequently  A.  died,  no  rent  having  been  paid  or  offered 
to  be  paid  by  C.  to  him  in  his  life-time  or  to  his  widow  since 
his  decease  ;  and  it  appeared  that  C.  was  insolvent  and  un- 
able to  carry  on  the  farm  under  the  contract.  It  was  held 
that  there  had  been  an  abandonment  of  the  contract,  and 
that  13.,  who  owned  the  farm,  was  entitled  to  its  possession.' 
A  sale  of  the  land  by  the  vendor  to  a  third  person,  is  a  re- 
scission of  the  contract  of  sale."  So  is  the  bringing  of  eject- 
ment to  recover  the  land  which  is  in  the  possession  of  the 
vendee"  under  a  parol  contract  of  sale.'  Likewise  the  sur- 
render of  a  written  contract  of  sale,  followed  by  acts  incon- 
sistent with  its  continuance."  A  written  agreement  not 
under  seal  between  two  partners  that  certain  land  .of  the 
firm  shall  be  assigned  to  one  of  them  as  his  separate  prop- 
erty, is  merely  executory,  and  if  the  partners  afterward  exe- 
cute deeds  of  the  land  to  third  persons,  the  agreement  is 
thereby  annulled.'  A.  having  entered  into  a  contract  with 
B.  to  sell  him  certain  real  estate  for  the  sum  of  two  hun- 
dred and  fifty-eight  dollars,  part  of  which  was  paid  down, 
and  the  balance  to  be  paid  W'hen  A.  should  make  title,  and 

A.  having  afterward  requested  B.  to  pay  such  balance,  which 

B.  refused  to  do,  not  because  A.  had  not  actually  executed 
a  conveyance,  but  for  the  reason  that  B.  had  bought  an  ad- 
verse title  to  the  land,  and  occupied  it  under  the  same,  it 
was  held  such  an  abandonment  of  the  contract  by  B.,  as  to 

1  Tibbatts  v.  Tibbatts,  6  McLean,  80. 

*  Little  V.  Thurston,  58  Me.,  86;  Warren  v.  Richmond,  53  111.,  52. 
'  Hairston  v.  Jaudon,  42  Miss.,  380. 

*  Crane  v.  De  Camp,  21  N.  J.  Eq.,  414.  A.  obtained  judgment  against  a  county, 
and,  on  an  execution  upon  the  judgment,  purchased  a  number  of  town  lots  be- 
longing to  the  county.  Afterward,  B.  bought  one  of  the  lots  at  public  sale,  paid 
the  purchase  money,  and  took  possession.  A.  died,  and  his  heirs  released  their 
interest  in  the  lots  to  the  county  on  being  repaid  the  purchase  money ;  B.  also 
agreeing  to  release  his  interest  m  the  lot  bought  by  him  on  receiving  the  amount 
he  had  paid.  The  money  was  tendered  to  B.,  who  refused  to  receive  it  and  to 
execute  a  release.  The  lot  which  B.  had  bought  was  afterward  sold  to  C.  by 
the  county,  with  the  knowledge  and  witliout  the  objection  of  B.,  and  a  deed  given 
of  the  same.  A  bill  filed  by  B.  against  the  county  to  obtain  legal  title  to  the  lot, 
was  dismissed.     Jaques  v.  Vigo  County,  2  Blackf.,  403. 

'  Jones  V.  Neale,  2  Fatten  &  Heath,  339. 


§  493-       WHEN  ABANDONMENT  OF  CONTRACT  PRESUMED.       69 1 

release  A.  from  all  obligation  to  convey  the  property,  and 
that,  upon  tender  of  the  money  B.  had  paid,  A.  was  entitled 
to  possession/  Where,  on  default  in  the  payment  of  the 
purchase  money,  one  party  said  to  the  other  that  there  must 
be  an  end  to  the  negotiation,  to  which  the  other  assented, 
it  was  held  that  the  contract  was  thereby  rescinded/  So 
where  the  vendor  remained  in  possession,  and,  seventeen 
years  afterward,  the  representatives  of  the  purchaser  claimed 
interest  on  the  debt  which  was  the  consideration  for  the 
sale,  and  not  that  they  were  entitled  to  the  rents  and  profits 
of  the  land,  it  was  held  that  the  contract  had  been  waived.' 
A.  purchased  a  lease  upon  the  assurance  of  the  lessor's  agent 
that  if  A.  made  certain  improvements,  he  should  have  a  re- 
newal of  the  lease,  or  a  new  lease  for  a  long  period  upon 
the  same  terms.  A.  made  the  improvements,  but  accepted 
a  lease  for  five  years  at  an  increased  rent.  It  was  held  that 
the  lessee  was  not  entitled  to  a  reformation  of  the  lease,  or 
to  specific  performance  of  the  agreement."  The  land  of  A. 
having  been  sold  on  an  execution  issued  by  B.,  C.  paid  part 
of  the  judgment  debt,  under  an  agreement  with  B.  that, 
upon  the  payment  of  a  certain  other  sum,  B.  would  convey 
the  property  to  C.  in  trust  for  the  wife  and  children  of  A. 
C.  died  without  making  any  further  payment,  and  B.  re- 
funded to  C.'s  administrator  what  C.  had  paid.  It  was  held 
that  the  administrator  had  thereby  rescinded  the  agreement 
of  B.  with  C  Where  a  married  woman  in  possession  of 
land  was  entitled  to  a  conveyance  on  the  payment  of  six 
hundred  dollars,  and  she  sold  her  equitable  right  and  sur- 
rendered possession  to  her  vendor,  it  was  held  that  she  could 
not  enforce  the  original  contract,  although  she  was  inca- 
pacitated from  making  the  second  one."  A.  entered  into 
a  contract  with  B.  to  convey  to  him  certain  real  estate,  B. 
agreeing  to  pay  off  incumbrances,  to  make  advances,  to  sell 

'  Fullerton  v.  Doyle,  18  Texas,  3.  *  Carter  v.  Dean  of  Ely,  7  Sim.,  211. 

^  Earl  of  Rosse  v.  Sterling-,  4  Dow.,  442.   And  see  Hill  v.  Gomme,  i  Beav.,  540. 
*  Ewald  V.  Lyons,  29  Cal.,  550.  ^  Smith  v.  Smith,  i  Greene,  Iowa,  307. 

°  Crane  v.  Crane,  81  III.,  165. 


692  DETERMINATION  OF  CONTRACT.         §  493. 

the  land  during  a  period  of  three  years,  and  to  divide  the 
proceeds  with  A.  B.  afterward  agreed  to  convey  the  land 
to  C,  the  latter  to  make  the  advances,  to  sell  the  land,  and 
to  pay  A.  his  share  of  the  proceeds.  The  three  years  hav- 
ing elapsed,  and  a  suit  between  a  committee  of  the  estate 
of  A.  and  B.  and  C,  to  set  aside  the  original  contract  hav- 
ing been  settled,  it  was  held  that  it  constituted  an  abandon- 
ment of  the  contract.'  But  a  loose  conversation  will  not 
be  sufficient  proof  of  the  waiver  of  the  contract."  The 
plaintiffs,  having  entered  upon  certain  work  under  a  written 
contract  with  the  defendants  therefor,  were  ordered  by  the 
latter  to  quit  and  do  no  more,  which  they  immediately  did. 
It  was  held  that  this  could  not  be  deemed  a  mutual  aban- 
donment of  the  contract,  but  that  the  defendants  were  liable 
for  all  the  consequences  of  a  breach  of  the  contract  on  their 
part'  Under  an  agreement  to  let  a  house  for  three  years 
at  a  yearly  rent,  and,  upon  the  request  of  the  tenant,  to  give 
him  a  lease  for  a  term  from  the  expiration  of  the  three  years' 
occupancy  at  the  same  rent,  the  tenant  stipulating  to  make 
all  repairs,  it  was  held  that  the  tenant,  who  remained  in  posses- 
sion, had  a  right,  four  years  after  the  expiration  of  the  three 
years'  occupancy,  to  have  the  agreement  specifically  per- 
formed, and  that  neither  an  application  made  by  him  two 
years  previous  for  a  lease  at  a  reduced  rent  which  was 
refused,  nor  an  application  to  be  allowed  for  what  he  had 
expended  in  repairs,  constituted  a  waiver  of  his  rights.*  It 
has  been  said  that  "the  court  requires  as  clear  evidence  of 
waiver,  as  of  the  existence,  of  the  contract  itself,  and  will 


'  Mann  v.  Palmer,  3  N.  Y.  Ct.  of  App.  Decis.,  162.  A  contract  between  the 
plaintiffs  and  the  water  commissioners  of  the  city  of  New  York  provided  that 
the  plaintiffs  should  construct  a  certain  portion  of  the  Croton  aqueduct  accord- 
ing to  specifications,  and  that  they  should  make  such  alterations  in  the  work  as 
might  be  directed  in  writing  by  the  water  commissioners,  or  their  chief  engineer. 
The  water  commissioners  having  stopped  the  work  for  the  ostensible  purpose  of 
changing  its  form  and  dimensions  without  giving  to  the  plaintiffs  any  written  no- 
tice for  such  change,  it  was  held  to  constitute  a  rescission  of  the  contract  on  the 
part  of  the  former.     Clark  v.  Mayor  of  New  York,  3  ^Jarb.,  288. 

*  Moore  v.  Crofton,  3  Jon.  &  Lat.,  438,  445.       ^  Derby  v.  Johnson,  21  Vt.,  17. 

*  Moss  v.  Barton,  L.  R.  i,  Eq.  474. 


§§  494»  495'  RIGHT    TO    RESCIND    CONTRACT.  693 

not  act  upon  less."'  Application  for  a  rescission  by  mutual 
consent,  is  not  a  rescission,  nor  does  it  imply  any  breach  or 
abandonment  of  the  contract  on  the  part  of  the  applicant.' 

§  494.  Who  to  rescind, — It  must  be  shown  that  the  con- 
tract was  abandoned  by  both  parties.'  It  cannot  be  re- 
scinded as  to  one,  and  remain  in  force  as  to  the  other.* 
But  it  somxCtimes  occurs  that  a  contract  may  be  specifically 
enforced  against  a  party  who  has  himself  forfeited  his  right 
to  insist  upon  it.'  So  the  court  may  refuse  to  enforce  an 
agreement  which  yet  cannot  be  regarded  as  rescinded." 

§  495.  Right  to  rescind  co7itract. — When  it  is  stipulated 
that,  upon  the  happening  of  a  certain  event,  the  agreement 
shall  be  void,  and  the  event  occurs,  the  contract  may  be 


'  Lord  St.  Leonards  in  Carolan  v.  Brabazon,  3  Jon.  &  Lat.,  200,  209;  Dial  v. 
Crane,  10  Texas,  444. 

*  Picot  V.  Douglass,  46  Mo.,  497. 

3  Fitt  V.  Cassanet,  4  M.  &  G.,  898  ;  Franklin  v.  Miller,  4  A.  &  E.,  599.  A 
mere  contract  of  agency  is  of  course  governed  by  different  principles.  A  per- 
son was  employed  by  a  railroad  company  to  obtain  donations  and  right  of  way 
for  an  extension  of  the  road,  and  to  be  allowed  for  his  services  two-fifths  in 
value  of  the  donations  procured,  and  his  actual  cash  expenses.  It  was  held  that 
the  contract  might  be  revoked  by  the  company  whenever  it  saw  fit.  The  court 
said :  "  We  can  regard  the  relations  between  the  defendant  and  plaintiff,  creat- 
ed by  the  instrument,  in  no  other  light  than  that  of  principal  and  agent.  It  is  a 
familiar  principle  of  law,  that  an  agency  is  revocable  at  the  will  of  the  principal, 
unless  the  power  conferred  on  the  agent  be  given  for  a  valuable  consideration, 
or  as  a  security,  or  is  coupled  with  an  interest.  It  is  not  claimed  that  the  author- 
ity conferred  upon  the  plaintiff  was  based  upon  a  consideration,  or  was  given 
as  a  security.  Is  it  a  power  coupled  with  an  interest  ?  What  was  the  interest 
of  plaintiff?  It  was  to  receive  a  certain  compensation  in  value  and  kind  of  the 
donations  he  should  receive  for  defendant.  His  interest  existed  in  that  which 
should  be  produced  by  the  exercise  of  the  power  conferred  upon  him.  Now  it 
is  plain  that  the  thing  in  which  he  had,  or  rather  was  to  have,  an  interest,  could 
not  exist  until  the  power  was  exercised.  The  exercise  of  the  power  was  neces- 
sary to  bring  the  thing  in  which  he  was  to  have  an  interest  into  existence.  In 
each  instance,  where  a  donation  was  given,  the  power  was  exhausted  when  the 
donation  was  received.  Hence,  the  power  and  the  interest  were  not  united. 
The  interest  coupled  with  a  power  which  gives  it  an  irrevocable  character,  must 
be  in  the  thing  upon  which  the  power  is  exercised,  and  not  in  that  which  may 
be  produced  by  the  exercise  of  the  power.  Before  the  exercise  of  the  power 
conferred  by  the  instrument  in  question,  nothing  did  or  could  exist  in  which 
plaintiff  had  an  interest.  He  had  a  right  to  a  part  of  the  donations  which  he 
should  procure.  He  had  no  interest  in  a  thing,  but  a  right  to  a  thing  when  it 
should  be  created.  His  power,  therefore,  was  not  coupled  with  an  interest,  and 
was  revocable  at  the  will  of  the  defendants."  Smith  v.  Cedar  Falls  &  Minn. 
R.R.  Co.,  30  Iowa,  244. 

*  Coolidge  V.  Brigham,  i  Mete,  550.      *  Price  v.  Assheton,  i  Y.  &  C.  Ex.,  82. 

*  Paris  Chocolate  Co.  v.  Crystal  Palace  Co.,  3  Sm.  &  Gif,  119. 


694  DETERMINATION  OF  CONTRACT.         §  495. 

rescinded  by  the  party  thereby  injured.'  If,  for  instance, 
it  be  provided  that  if  the  vendor  cannot  show  a  good  title, 
or  the  purchaser  does  not  make  his  payment  at  the  day 
agreed,  the  contract  shall  be  void,  the  stipulation  has  been 
held  to  mean  that  in  the  former  case  the  purchaser,  and  in 
the  latter  the  vendor,  may  avoid  the  contract,  and  not  that 
the  contract  is  absolutely  void."  On  the  sale  of  land,  part 
of  the  purchase  money  was  paid,  and  promissory  notes 
given  for  the  balance,  the  vendor  at  the  same  time  giving 
the  vendee  a  title  bond  conditioned  that  if  the  notes  were 
not  paid  when  they  fell  due,  the  bond  should  be  void,  and 
the  money  paid  by  the  vendee  forfeited  ;  or  if,  upon  pay- 
ment of  the  notes,  the  vendor  should  execute  a  convey- 
ance of  the  property  to  the  vendee  with  warranty,  the  bond 
should  be  void.  It  was  held  that  the  purchaser  might  elect 
either  to  pay  the  notes  and  take  the  property,  or  to  give  up 
the  contract  and  forfeit  the  money  paid.'  Whenever  one 
party  to  a  contract  refuses  to  execute  any  substantial  part 
of  his  agreement,  he  thereby  gives  to  the  other  party  the 
option  to  rescind  the  entire  contract  by  offering  to  restore 
what  he  has  received,  and  replacing  the  parties  in  their  orig- 
inal situation,  provided  the  offer  to  do  this  is  rnade  in  a 
reasonable  time,  and  the  situation  of  the  parties  remains  so 
far  unchanged  that  they  can  be  restored  to  their  first  posi- 
tion. But  the  party  who  would  take  this  ground,  must  do 
so  distinctly  and  unequivocally."  A  party  cannot  rescind 
if  the  failure  of  the  other  party  be  but  partial,  leaving  a 


'  Arnoux  v.  Homans,  25  How.,  Pr.,  427. 

2  Roberts  v.  Wyatt,  2  Taunt.,  268.  And  see  Hyde  v.  Watts,  12  M.  &  W., 
254.  The  agreement  may  provide  that  advantage  may  be  taken  of  the  default 
of  either  party.  Where  it  was  stipulated  that  there  need  not  be  performance  if 
the  title  were  found  to  be  defective,  which  proved  to  be  the  case,  the  vendor  was 
permitted  to  rescind,  for  the  reason  that  counsel  were  of  opinion  that  a  market- 
able title  could  not  be  made  to  an  undivided  third  of  the  estate.  Williams  v. 
Edwards,  2  Sim.,  78.  And  the  same  privilege  was  accorded  to  the  purchaser,  in 
a  case  where  the  vendor  had  no  title  to  a  small  portion  of  the  property.  Ash- 
ton  V.  Wood,  3  Jur.  N.  S.,  1164. 

^  Peterson  v.  Dickey,  8  Blackf.,  427. 

*  Webb  V.  Stone,  24  N.  H.,  282 ;  Allen  v.  Webb,  lb.,  278  ;  Sumner  v.  Parker, 
36  lb.,  449 ;  Fay  v.  Oliver,  20  Vt.,  118  ;  Fletcher  v.  Cole,  23  lb.,  114. 


§  495*  RIGHT    TO    RESCIND    CONTRACT.  695 

distinct  part  as  a  subsisting  and  executed  consideration,  and 
leaving  also  the  other  party  his  action  for  damages  for  the 
part  not  performed.  Ordinarily,  a  contract  cannot  be  re- 
scinded by  one  of  the  parties  unless  both  can  be  restored 
to  the  condition  in  which  they  were  before  the  contract 
was  made.  So  that  if  one  of  the  parties  has  obtained  an 
advantage  by  a  partial  performance,  he  cannot  hold  this  ad- 
vantage and  regard  the  contract  as  rescinded  because  of  the 
non-performance  of  the  residue,  but  must  do  all  that  the 
contract  requires  of  him,  and  seek  his  remedy  in  damages.' 
When  a  party  is  entitled  to  the  rescission  of  an  agreement 
on  the  non-performance  of  an  act  which  it  is  his  duty  to 
perform,  he  will  not  be  permitted  to  refuse  to  perform  the 
act,  and,  on  the  strength  of  his  own  neglect,  to  annul  the 
contract.  But  he  may  rescind  the  contract,  if,  having  done 
all  in  his  power,  he  fails  to  perform  the  act."  On  the  other 
hand,  if  the  right  to  rescind  is  dependent  upon  the  ina- 
bility or  unwillingness  of  the  party  to  do  the  act,  he  may 
exonerate  himself  by  his  election  from  any  obligation  to  do 
the  act.'  Where,  however,  a  clause  in  a  contract  for  sale  em- 
powers the  vendor,  in  case  the  purchaser  shall  insist  on  any 
objection  which  he  should  be  unwilling  or  unable  to  remove, 
to  rescind  such  contract,  there  must  be  not  only  an  inability 
or  unwillingness  on  the  part  of  the  vendor,  but  an  insisting 
on  the  part  of  the  purchaser  ;  and  if  the  latter  waives  the 
objection,  the  former  cannot  rescind.* 

1  Franklin  v.  Miller,  4  Ad.  &  El.,  599 ;  Beed  v.  Blandford,  2  Y.  &  J.,  278 ; 
Hunt  V.  Silk,  5  East.,  449 ;  Burge  v.  Cedar  Rapids  &  Mo.  R.R.  Co.,  32  Iowa, 

lOI. 

^  Page  V.  Adams,  4  Beav.,  269. 

^  Tanner  v.  Smith,  10  Sim.,  410;  Morley  v.  Cooke,  2  Hare,  106.  The  bring- 
ing of  an  action  at  law  and  the  recovery  of  damages  for  breach  of  contract, 
will  constitute  an  election  by  the  party  of  his  remedy.  Orme  v.  Broughton,  10 
Bing.,  533  ;  Sainter  v.  Ferguson,  i  Mac.  &  G.,  286  ;  Buckmaster  v.  Grundy,  3 
Gilman,  626;  Hopkins  v.  Lee,  6  Wheat.,  109;  Hill  v.  Hobart,  16  Me.,  169; 
Stuyvesant  v.  New  York,  11  Paige  Ch.,  414.  But  see  Pritchard  v.  Todd,  38 
Conn.,  413. 

■*  Duddeil  V.  Simpson,  L.  R.  i,  Eq.  578.  An  agreement  to  sell  a  person  all  the 
timber  on  certain  land  "  suitable  for  rafting  and  sawing,"  will,  from  its  nature, 
be  terminated,  if  the  vendee  does  not  avail  himself  of  the  right  within  a  reason- 
able time  after  being  notified  to  do  so.     Boults  v.  Mitchell,  15  Pa.  St.,  371. 


696  DETERMINATION  OF  CONTRACT.    §§  496,  497. 

§  496.  Right  of  rescissioji  to  be  exercised  promptly. — A 
party  seeking  to  rescind  a  contract  must  make  his  applica- 
tion without  delay,  and  come  to  his  election  as  soon  as  the 
cause  for  rescission  is  discovered,  so  that  the  parties  may 
be  placed  as  nearly  in  statu,  quo  as  possible/  If  he  has 
been  deceived,  he  must,  upon  the  discovery  of  the  fraud, 
elect  to  rescind,  or  to  treat  the  transaction  as  a  contract.' 
Where  the  conditions  of  sale  provide  that,  in  case  of  any 
objection  which  the  vendor  is  unable  or  unwilling  to  re- 
move, he  may  rescind  the  contract  and  the  purchaser  have 
his  deposit  without  interest  or  costs,  it  has  been  held  that 
the  objection  must  be  such  as  is  taken  soon  after  it  is  as- 
certained, and  that  a  negotiation  between  the  parties  for 
the  completion  of  the  purchase,  being  evidence  of  the 
vendor's  willingness  to  remove  the  objection,  would  con- 
stitute a  waiver  of  the  condition.'  So,  where  money  is 
payable  by  instalments,  a  party  must  avail  himself  of  the 
right  to  rescind,  on  breach  of  the  contract,  without  delay ; 
and  if  he  receives  money  due  on  a  subsequent  instalment, 
he  thereby  waives  the  right  to  rescind  for  default  in  a  pre- 
vious payment.' 

§  497.  Waiver  of  right. — Where  there  is  an  agreement 
to  rescind  at  a  future  day  if  certain  things  are  not  done, 
either  party  may,  if  so  disposed,  waive  whatever  advantages 
he  has  under  the  agreement,  and  stand  with  the  consent  of 
the  other,  either  express  or  implied,  upon  the  terms  of  the 
original  contract."  If  the  right  to  rescind  has  been  waived, 
it  will  not  be  revived  by  the  mere  subsequent  discovery  of 
some  incident  of  fraud  or  other  ground  which  w^as  unknown 
at  the  time  of  the  waiver.  Where  a  purchaser,  upon  dis- 
covering fraud,  did  not  make  any  objection,  but  afterward, 
upon  finding  other  evidence  of  fraud,  did  so,  it  was   held 

^  Tobey  v.  Crow,  37  Md.,  51. 

^  Campbell  v.  Fleming,  i  A.  &  E.,  40. 

3  Tanner  v.  Smith,  10  Sim.,  410  ;  Morley  v.  Cook,  2  Hare,  106  ;  M'Culloch  v. 
Gregory,  i  K.  &  J.,  286;  Lane  v.  Debenham,  17  Jur.,  1005.  And  see  Cutts  v. 
Thodey,  13  Sim.,  206. 

^  Hunter  v.  Daniel,  4  Hare,  420.  *  Echols  v.  Butler,  28  Miss.,  114. 


§  498.  COMPENSATION    AND    RESCISSION.  697 

too  late  for  him  to  rescind  the  contract/  "  To  entitle  him 
to  do  so,  he  should,  at  the  time  of  discovering  the  fraud, 
have  elected  to  repudiate  the  whole  transaction.  Instead 
of  doing  so,  he  deals  with  that  for  which  he  now  says  that 
he  never  legally  contracted.  Long  after  this,  as  he  alleges, 
he  discovers  a  new  incident  in  the  fraud.  This  can  only 
be  considered  as  strengthening  the  evidence  of  the  original 
fraud ;  and  it  cannot  revive  the  right  of  repudiation  which 
has  been  once  waived."''  But  where  it  is  agfreed  that  a 
party  shall  be  entitled  to  rescind  in  respect  to  separate 
breaches,  the  waiver  of  one  will  not  affect  the  party's  right 
as  to  the  other.  Accordingly,  where  it  was  stipulated  that 
money  should  be  paid  by  instalments,  and  that  time  should 
be  of  the  essence  of  the  contract,  and  that  the  agreement 
might  be  rescinded  upon  breach  of  it,  it  was  held  that  each 
default  in  the  payment  of  an  instalment  at  the  time  agreed 
constituted  another  breach  of  the  contract  on  which  there 
was  a  right  to  rescind.' 

§  498.  Compensation  and  rescission. — When  compensa- 
tion and  the  right  to  rescind  are  stipulated  for,  the  latter 
will  in  general  be  restricted  to  cases  not  within  the  condi- 
tion for  the  former.  This  principle  was  illustrated  in  a 
case  as  follows :  Particulars  of  sale,  through  mistake  on 
the  part  of  the  vendor,  described  part  of  the  property  as  a 
customary  leasehold  of  a  manor,  renewable  every  twenty- 
one  years  on  payment  of  a  customary  fine,  when  the  prop- 
erty was  in  fact  a  leasehold  for  twenty-one  years  without 
the  right  of  renewal.  The  fourth  condition  of  sale  pro- 
vided that  the  vendor  might  at  any  time  after  the  delivery 
of  objections  to  the  title,  vacate  the  sale,  and  that  the  de- 
posit should  thereupon  be  returned  without  interest,  costs, 
or  other  compensation.  It  was  stipulated  in  the  fifth  con- 
dition that  the  purchaser  should  accept  the  existing  lease 
and  its  assignment  to  the  vendor  as  a  sufficient  title  to  the 

*  Campbell  v.  Fleming,  supra.  *  Ibid.,  per  Patterson,  J. 

^  Hunter  v.  Daniel,  stcpra. 


698  DETERMINATION  OF  CONTRACT.         §  498. 

property.  The  sixth  condition  provided  that  if,  through 
any  mistake,  the  property  should  be  incorrectly  described, 
or  any  error  or  misstatement  be  inserted,  it  should  not 
vitiate  the  sale,  but  that  compensation  should  be  made  by 
either  party,  as  the  case  might  be.  The  vice-chancellor, 
referring  to  the  fifth  condition  as  explaining  the  use  of  the 
word  title,  held  that  the  error  consisted  rather  in  a  mis- 
statement of  the  subject  matter  of  the  sale,  than  of  the 
vendor's  title  to  it,  and  that  it  was  therefore  within  the 
sixth,  and  not  within  the  fourth,  condition  of  sale ;  and  he 
accordingly  enforced  specific  performance  with  compensa- 
tion.' 

'  Painter  V.  Nevvby,  ii  Hare,  26.     And  see   Nelthorpe  v.  Holgate,   i    Coll., 
203  ;  Hoy  V.  Smythies,  22  Beav.,  510. 


BOOK  IV. 

MATTERS  INCIDENT  TO  THE  JURISDICTION. 


CHAPTER  I. 

COMPENSATION    AND    DAMAGES. 

499.  General  rule  in  its  application  to  vendor  or  vendee. 

500.  When  and  how  applied  for. 

501.  Limitation  of  power  of  court. 

502.  When  vendor  may  convey  less  than  he  agreed,  with  compensation. 

503.  Defects  which  may  be  compensated. 

504.  When  purchaser  not  bound  to  accept  part  performance  with  compensa- 

tion. 

505.  Rig-ht  of  vendee  to  elect  to  take  compensation  or  have  the  contract  re- 

scinded. 

506.  Knowledge  of  vendee  of  defect. 

507.  Where  the  loss  is  uncertain. 

508.  Effect  of  stipulation  that  compensation  shall  not  be  allowed. 

509.  In  case  of  the  sale  of  property  in  gross,  or  as  containing  a  specified 

quantity. 

510.  Where  full  performance  will  injure  third  persons. 

511.  In  case  of  refusal  of  wife  to  join  in  deed. 

512.  Where  the  vendor  sells  the  land  to  another  party. 

513.  Where  parties  purchase  for  their  common  benefit. 

514.  Power  of  court  to  award  damages. 

515.  Limitation  of  jurisdiction  of  court  as  to  damages. 

516.  Knowledge  of  plaintiff  that  contract  cannot  be  enforced. 

517.  Where  defendant  has  deprived  himself  of  power  to  perform. 

518.  Lord  Cairns'  Act. 

519.  Liability  of  purchaser  to  payment  of  interest. 

520.  Repairs,  deterioration,  or  accidental  loss. 

521.  Right  of  vendee  to  be  allowed  for  improvements. 

522.  In  case  of  verbal  contract  partly  performed. 

523.  Waiver  of  objection  that  there  is  a  remedy  at  law. 

524.  Compensation  how  determined. 

525.  Measure  of  damages. 

» 

§  499.  Under  zvhat  circumstances  allowed. — Cases  often 
occur  in  which  complete  justice  cannot  be  done  between 
the  parties  to  a  contract  by  a  decree  for  specific  perform- 
ance, without  allowance  made  to  one  of  them  for  some  de- 
fect in  the  subject  matter  of  the  contract,  or  for  injury  sus- 


yOO  COMPENSATION    AND    DAMAGES.  §  499. 

tained  by  some  act  or  default  of  the  other ;  and  hence 
arises  the  salutary  doctrine  of  compensation.'  The  plain- 
tiff may  admit  his  inability  to  perform  the  contract  liter- 
ally, and  ask  that  it  be  enforced  to  the  extent  he  can  fulfil 
it,  with  compensation  to  the  defendant  for  the  failure ;  or 
the  question  of  compensation  may  be  raised  by  the  de- 
fendant when  the  plaintiff  prays  for  a  decree  without  any 
allowance  for  the  non-fulfilment  on  his  part  of  the  exact 
terms  of  the  contract.  Where,  in  the  first  of  the  cases 
supposed,  the  vendor  is  plaintiff,  the  court  \\\\\  be  cautious 
in  granting  him  the  relief  asked,  and  in  enforcing  perform- 
ance by  an  unwilling  purchaser  ;  and  it  will  not  do  it  unless 
the  purchaser  can  be  placed  in  a  condition  as  favorable  sub- 
stantially as  if  the  contract  had  been  fully  carried  out." 
On  the  other  hand,  if  the  purchaser  chooses  to  accept  less 
than  he  contracted  for,  there  can  be  no  good  reason  why 
he  should  not  compel  the  vendor  to  perform  as  far  as  he  is 
able,  with  compensation  for  the  deficiency.'     As  where  a 

^  The  doctrine  of  equity  is  not  forfeiture,  but  compensation  (Page  v.  Broom, 
4  Russ.,  6),  the  principle  being-  that  if  a  party  gets  substantially  what  he  bar- 
gains for,  he  must  take  a  compensation  for  a  deficiency  in  value.  Dyer  v.  Har- 
grave,  10  Ves.,  806.  It  is  said  that,  "  Lord  Thurlovv  used  to  refer  this  doctrine 
of  specific  performance  to  this :  That  it  is  scarcely  possible  that  there  may  not 
be  some  small  mistake  or  inaccuracy  ;  as  that  a  leasehold  interest  represented 
to  be  for  twenty-one  years,  may  be  for  twenty  years  and  nine  months  ;  some  of 
those  little  circumstances  that  would  defeat  an  action  at  law,  and  yet  be  so 
clearly  in  compensation  that  they  ought  not  to  prevent  the  execution  of  the 
contract.  And  at  other  times  he  used  to  say,  that  the  jurisdiction  of  a  court  of 
equity  to  compel  a  specific  performance  must  have  been  founded  upon  the  no- 
tion of  its  being  against  conscience  to  take  advantage  of  small  circumstances  of 
variation  in  the  description  of  the  thing  contracted  for,  and  that  the  principle, 
being  once  established,  was  gradually  enlarged,  till  a  specific  performance  in 
equity  became  at  length  a  performance  of  anything  rather  than  the  real  con- 
tract between  the  parties.  But  this  language  must  be  received  with  due  regard 
to  the  circumstances  in  which  it  was  used."     Batten  on  Specif  Perform.,  123. 

"^  Gardiner  v.  Gerrish,  23  Me.,  46  ;  Henry  v.  Graddy,  5  B.  Mon.,  450  ;  King  v. 
Bardeau,  6  Johns  Ch.,  38  ;  Winne  v.  Reynolds.  6  Paige  Ch.,  407.  See  Nel- 
thorpe  v.  Holgate,  i  Coll.  C.  C,  203;  Collier  v.  Jenkins,  You.,  295;  Wilson  v. 
Williams,  3  Jur.  N.€.,  810.  Where  the  defence  to  a  contract  of  purchase  is, 
that  the  land  does  not  lie  in  the  locality  the  vendee  was  led  to  suppose,  a  com  • 
pensation  in  damages  may  not  afford  adequate  relief,  for  the  reason  that  "  the 
peculiar  locality,  soil,  vicinage,  advantage  of  markets,  and  the  like  conveniences 
of  an  estate  contracted  for,  cannot  be  replaced  by  other  land  of  equal  value." 
Best  V.  Stow,  2  Sandf  Ch.,  298. 

*  Seaman  v.  Vawdrey,  16  Ves.,  390;  Dyas  v.  Cruise,  2  J.  &  L.,  460;  Martin 
V.  Cotter,  3  lb.,  496  ;  Peacock  v.  Penson,  11  Beav.,  355  ;  Woodbury  v.  Luddy, 
14  Allen,  94. 


§  499-  UNDER    WHAT    CIRCUMSTANCES    ALLOWED.  70I 

tenant  for  life  contracts  for  the  sale  of  a  fee ; '  or  one  who 
has  only  a  term  for  years  contracts  in  the  same  way  ; ''  or  a 
person  contracts  for  an  absolute  term  when  the  interest  of 
the  vendor  is  defeasible  ;'  or  it  is  out  of  the  power  of  the 
vendor  to  convey  more  than  a  portion  of  the  real  estate  he 
has  agreed  to  sell/  The  rule  as  to  the  purchaser  is,  that 
though  he  cannot  have  a  partial  interest  forced  upon  him, 
yet  if  he  entered  into  the  contract  in  ignorance  of  the  ven- 
dor's incapacity  to  give  him  the  whole,  and  chooses  after- 
ward to  take  as  much  as  he  can  get,  he  has  generally, 
though  not  universally,  a  right  to  insist  on  that,  with  com- 
pensation for  the  defect ;  but  that  the  defect  must  be  one 
admitting  of  compensation,  and  not  a  mere  matter  of  arbi- 
trary damages.  There  is  nothing  in  the  general  rule  of 
which  the  vendor  can  complain.  It  is  his  own  fault  if  he 
has  assumed  obligations  which  he  cannot  fulfil.  The  ven- 
dor is  not  compelled  to  convey  anything  he  did  not  agree 
to  convey ;  and  the  vendee  pays  for  what  he  gets,  accord- 
ing to  the  rate  established  by  the  agreement.'  Where  ten- 
ants in  common  had  contracted  for  the  sale  of  their  estate, 
and  one  of  them  died,  it  was  held  that  the  survivors  could 
not  compel  the  purchaser  to  take  their  share.  But  the 
converse  of  the  proposition  was  denied,  and  it  was  held 
'that  the  purchaser  might  compel  the  survivors  to  convey 
their  shares,  although  the  contract  could  not  be  enforced 
against  the  heirs  of  the  deceased."     This  partial  perform- 

'  Mortlock  V.  Duller,  10  Ves.,  315  ;  Barnes  v.  Wood,  L.  R.  8,  Eq.  424. 

■  Wood  V.  Griffith,  i  Swanst.,  54.  ^  Dale  v.  Lister,  16  Ves.,  7. 

''  Pratt  V.  Law,  9  Cranch,  456.  In  an  early  case,  it  was  said  that,  "  no  one 
could  dispute  the  proposition  that  if  a  man  agrees  to  sell  me  an  estate  in  fee 
simple,  I  can  insist  upon  his  giving  me  all  the  title  he  has.  He  cannot  say  he 
will  give  me  nothing  because  he  cannot  give  me  ail  I  have  contracted  for.  If 
he  contracts  to  sell  a  fee  simple,  and  has  only  a  term  of  one  hundred  years,  I 
have  a  right  to  that  term  if  I  think  fit."  Lord  Eldon,  in  Wood  v.  Griffith,  i 
Wils.  Ch.  Cas.,  44. 

^  Adam's  Eq.  P.,  90. 

"  Atty.  Genl.  v.  Day,  i  Ves.  Sen.,  2l8.  And  see  Wood  v.  Griffith,  szipra  ; 
Milligan  v.  Cook,  16  Ves.,  i  ;  Waters  v.  Travis,  9  Johns,  450;  Voorhees  v.  De 
Myer,  3  Sandf.  Ch.,  614;  2  Barb.,  37  ;  Erwin  v.  Myers,  46  Pa.  St.,  96  ;  Napier 
v.  Darlington,  70  lb.,  64;  Clarke  v.  Reins,  12  Gratt.,  98;  Jacobs  v.  Locke,  2 
Ired.  Eq.,  286;  Harbers  v.  Gadsden,  6  Rich.  Eq.,  284  ;  Weatherford  v.  James, 


702  COMPENSATION    AND    DAMAGES.  §  5OO. 

ance  is  somewhat  incorrectly  called  a  specific  performance, 
when  it  is,  in  fact,  the  enforcement  of  a  contract  the  par- 
ties did  not  enter  into,  and  in  which  it  is  frequently  diffi- 
cult to  ascertain  the  just  price.  It  is  easier  to  arrive  at 
what  will  be  a  suitable  compensation  in  the  case  of  a  de- 
ficiency in  the  quantity  or  quality  of  the  land  sold,  than  of 
a  deficiency  in  the  vendor's  interest,  where  a  reversioner  or 
other  person  may  be  prejudiced  by  partial  alienation.' 

§  500.  Application  for. — When  a  partial  performance  of 
the  contract  is  sought  with  compensation,  the  plaintiff, 
whether  he  be  the  vendor  or  the  vendee,  should  set  out  in 
his  bill  the  facts  entitling  him  to  such  relief.  This,  in  the 
case  of  the  vendor,  is  indispensable,  and  unless  the  bill  dis- 
tinctly raises  the  question,  it  will  be  demurrable.'  Where 
the  sole  issue  raised  by  his  bill  was  that  a  good  title  had 
been  shown  at  the  time  agreed,  it  was  held  that  perform- 
ance would  not  be  enforced  with  compensation.'  When 
compensation  is  sought  by  the  vendee,  although  it  is  better 
for  him  to  state  his  grounds  therefor  in  his  pleading,  yet  he 
is  not  obliged  to  do  so,  but  may  obtain  compensation  at 
any  time  during  the  investigation  before  performance, 
though  the  prayer  of  his  bill  and  the  decree  rendered  at  the 
hearing  do  not  allude  to  compensation."    Where,  pending  a 

2  Ala.,  170.  In  Hill  v.  Buckley,  17  Ves.,  394,  the  master  of  the  rolls  said,  that 
"  where  a  misrepresentation  is  made  as  to  quantity,  though  innocently,  the  pur- 
chaser is  entitled  to  have  what  the  vendor  can  give,  with  an  abatement  out  of 
the  purchase  money  for  so  much  as  the  quantity  falls  short  of  the  representa- 
tion." And  see,  to  the  same  effect,  Graham  v.  Oliver,  3  Beav.,  124;  Wheatly 
V.  Slade,  4  Sim.,  126  ;  Nelthorpe  v.  Holgate,  i  Coll.  C.  C,  203. 

'  Graham  v.  Oliver,  i  Keen,  748,  note ;  Harbers  v.  Gadsden,  6  Rich.  Eq., 
284. 

■^  Bowyer  v.  Bright,  1 3  Price,  698. 

'  Ashton  V.  Wood,  3  Jur.  N.  S.,  1164;  S.  C,  3  Sm.  &  Gif.,  436. 

■'  Wilson  V.  W^illiams,  3  Jur.  N.  S.,  810.  The  claim  for  compensation,  in  a  suit 
for  specific  performance,  pertains  to  the  cause  of  action,  and,  whether  presented 
by  the  pleadings  or  not,  is  determined  by  the  decree,  which  will  be  a  bar  to  a 
subsequent  action  in  relation  to  the  same  matter.  Thompson  v.  Myrick,  24 
Minn.,  4.  But  if  the  vendor  has  no  title  to  the  property,  which  is  known  to  the 
vendee  when  he  files  his  bill,  and  he  neglects  to  allege  the  fact,  the  court  will  re- 
fuse to  give  him  compensation.  "  For  it  the  tacts  which  were  then  known  to  him 
had  been  fully  stated  in  his  bill,  the  defendant  might  have  demurred,  upon  the 
ground  that  the  complainant's  remedy,  if  any  he  had,  was  at  law,  and  not  in 
equity."  Walworth,  Ch.,  in  Morss  v.  Elmendorf,  11  Paige  Ch.,  277.  Stt  post, 
§506. 


§  500-  APPLICATION    FOR.  JOT, 

suit  for  the  specific  performance  of  a  contract  to  grant  a 
license  to  work  a  stone  quarry,  some  of  the  stone  had  been 
taken  away,  compensation  was  obtained  by  a  supplemental 
bill.*  The  purchaser  will  be  entitled  to  compensation  at  any 
time  before  the  execution  of  the  conveyance  and  the  pay- 
ment of  the  whole  purchase  money  as  to  a  matter  which 
has  previously  arisen  either  before  or  after  the  contract." 
Thus,  where  real  estate  was  sold  as  exempt  from  the  pay- 
ment of  tithes,  and,  after  a  claim  had  been  raised  by  the  in- 
cumbent of  the  parish,  the  conveyance  executed,  and  a  por- 
tion of  the  purchase  money  reserved  as  an  indemnity  against 
this  claim,  it  appeared  that  the  claim  was  unfounded,  but 
that  the  land  was  subject  to  tithe  to  the  incumbent  of 
another  parish,  it  was  held,  on  a  bill  filed  by  the  purchaser, 
that  he  w^as  entitled  to  compensation  out  of  the  fund.'  And 
compensation  has  been  allowed  for  deterioration  of  the 
property  between  the  time  the  contract  ought  to  have  been 
fulfilled  on  the  part  of  the  vendor,  and  the  time  when  he  in 
fact  fulfils.'     But  after  the  contract  has  been  performed  on 

^  Nelson  v.  Bridges,  2  Beav.,  239.  In  this  case  Lord  Langdale  said :  "  It  has 
already  been  declared  that  the  plaintiff  is  entitled  to  a  specific  performance  of  the 
agreement.  But,  pending  the  proceedings,  the  very  subject  of  the  agreement,  to 
which  the  plaintiff  has  by  the  decree  been  declared  entitled,  has  been  abstracted. 
The  stone,  or  a  quantity  of  the  stone,  which  the  plaintiff  had  obtained  a  license 
to  quariy,  has  actually  been  taken  avvay  by  the  defendant  Wordsworth  ;  so  that, 
while  the  performance  of  the  agreement  has  been  resisted  and  delayed  by  the 
defendants,  they,  or  one  of  them  at  least,  has  taken  away  a  portion  of  the  sub- 
ject matter  of  the  suit,  and  the  plaintiff  has  been  thereby  forever  deprived  of  the 
full  benefit  of  the  contract.  If  that  circumstance  had  been  known  at  the  first 
hearing,  I  cannot  have  the  least  doubt  but  that  the  court  would,  in  the  exercise 
of  its  jurisdiction,  have  put  in  a  due  course  of  investigation  the  question  of  the 
amount  of  compensation  which  ought  to  be  made  to  the  plaintiff.  This  matter, 
it  appears,  was  not  brought  to  the  attention  of  the  court  at  that  time,  and  a  sup- 
plemental bill  is  now  filed  by  the  plaintiff  for  the  purpose  of  obtaining  compensa- 
tion. It  is  said  that  such  compensation  might  originally  have  been  had  at  law, 
or  if  not,  that  at  least  it  might  have  been  obtained  at  law  by  perfecting  the  de- 
cree for  the  specific  performance  of  the  agreement  in  some  particular  form.  I 
am  of  opinion  that  it  is  not  necessary  for  this  court,  when  it  has  once  enter- 
tained jurisdiction  in  a  case,  to  resort  to  that  circuitous  mode  of  giving  relief  I 
think,  moreover,  that  if  this  matter  had  been  before  the  court  at  the  first  hearing, 
it  would  have  been  put  in  a  proper  train  of  investigation.  Under  these  circum- 
stances, therefore,  it  appears  to  me  that  the  plaintiff  is  now  entitled  to  relief" 

2  Frank  v.  Basnett,  2  My.  &  K.,  618  ;  Cator  v.  Earl  of  Pembroke,  i  Bro.  C.  C, 
301  ;  Prothero  v.  Phelps,  25  L.  J.  Ch.,  105  ;  Cann  v.  Cann,  3  Sim.,  447. 

^  Crompton  v.  Lord  xMelbourne,  5  Sim.,  353. 

*  Binks  V.  Lord  Rokeby,  2  Swanst,  222  ;  Foster  v.  Deacon,  3  Mad.,  394. 


704  COMPENSATION    AND    DAMAGES.  §§  5OI,   502. 

both  sides,  the  court  has  no  power  to  enforce  compensa- 
tion.' 

§  501.  Court  no  power  to  change  terms  of  contract. — At 
law,  the  vendor  cannot  recover  part  of  the  purchase  money 
if  unable  to  give  a  title  to  the  whole  property  ;  nor  can  a 
purchaser  insist  on  paying  only  a  part  where  there  is  a  partial 
failure  in  the  sale."  So,  a  court  of  equity,  in  decreeing  spe- 
cific performance,  cannot,  as  a  rule,  compel  the  defendant 
to  take  less,  or  give  more,  than  the  amount  fixed  by  the 
contract'  A.  entered  into  a  contract  w^ith  B.  and  C,  to  sell 
them  certain  land  at  a  price  to  be  determined  by  referees 
to  be  chosen  by  the  parties,  and  to  be  paid  for  in  merchan- 
dise. The  merchandise  was  duly  delivered  to  A.,  and  the 
land  valued.  But,  objections  having  been  made  to  the  title, 
B.  and  C.  brought  an  action  at  law  on  the  contract  for  the 
value  of  the  merchandise,  and  recovered.  A.  thereupon 
filed  a  bill  for  specific  performance  of  the  contract,  which 
was  decreed  upon  the  terms  of  a  reduction  of  the  price  of 
the  goods  delivered  thirty-three  and  a  third  per  cent.,  and 
the  same  in  the  price  of  the  land,  the  balance  to  be  paid  in 
cash.  Held  error,  the  court  having  no  power  to  reduce  the 
price  of  the  merchandise,  although  it  might  decree  specific 
performance  at  the  request  of  A.,  upon  the  terms  of  an 
abatement  in  the  price  of  the  land.' 

§  502.  When  strict  fulfilment  excused. — A  vendor  may, 
however,  notwithstanding  he  cannot  convey  strictly  accord- 
ing to  his  contract,  be  held  entitled  to  a  decree  compelling 
the  purchaser  to  fulfil  on  his  part.  If  it  is  out  of  the  ven- 
dor's power,  from  any  cause  not  involving  bad  faith,  to  con- 
vey each  and  every  parcel  of  the  land  contracted  to  be  sold, 
and  it  is  evident  that  the  part  which  cannot  be  conveyed  is 
of  small  importance,  or  is  immaterial  to  the  purchaser's  en- 

Newham  v.  May,  13  Price,  749. 

''Johnson  v.  Johnson,  3  Bos.  &  Pull.,  162;  Parhann  v.  Randolph,  4  How. 
Miss.,  435. 

'  M'Kean  v.  Read  Litt.  Sel.  Cas.,  395  ;  Bryan  v.  Read,  i  Dev.  &  Batt.,  78  ; 
Reed  v.  Noe,  9  Yerg.,  283.     Ssitpost,  §§  502,  503,  504,  505,  506,  510. 

*  Courcier  v.  Graham,  2  Ohio,  341.     See  a}ite,  §430. 


§   502.  WHEN    STRICT    FULFILMENT    EXCUSED.  705 

joyment  of  that  which  may  be  conveyed  to  him,  the  ven- 
dor may  insist  on  performance  with  compensation  to  the 
purchaser,  or  a  proportionate  abatement  from  the  agreed 
price,  if  that  has  not  been  paid.  But  this  cannot  be  done 
when  the  part  with  reference  to  which  the  defect  exists  is 
a  considerable  portion  of  the  entire  subject  matter,  or  is  in 
its  nature  material  to  the  enjoyment  of  the  part  in  which 
there  is  no  defect,  or  property  is  contracted  for  which  has 
for  the  purchaser  a  peculiar  value  not  capable  of  pecuniary 
compensation.'  When  the  possession  of  particular  parts  of 
the  land  sold  may  fairly  be  deemed  the  inducement  of  the 
contract,  as  in  the  case  of  buildings,  valuable  meadows,  or 
orchards  situated  on  a  portion  of  the  land,  the  incapacity 
of  the  vendor  to  make  a  good  title  to  such  portion,  would 
afford  a  strong  ground  to  vacate  the  whole  agreement. 
This,  however,  would  not  be  the  case,  when  the  property 
sold  consisted  of  separate  lots  in  a  city,  sold  at  different  rates. 
If  a  title  could  not  be  made  to  some  of  the  lots,  the  pur- 
chaser would  only  be  entitled  to  an  allowance  for  the  de- 
ficiency, and  the  vendor  would  be  compelled  to  convey  the 
rest  of  the  property  upon   being  paid  the  balance  of  the 


'  Magennis  v.  Fallon,  2  Moll.,  561  ;  Foley  v.  Crow,  37  Md.,  51  ;  Shaw  v.  Vin- 
cent, 64  N.  C,  699.  "There  is  great  difficulty  in  applying-  the  doctrine  of  com- 
pensation to  a  reluctant  purchaser.  There  is  no  standard  by  which  to  ascertain 
what  is  essential  to  a  purchaser.  The  motives  for  purchasing  real  property  a're 
ver)'  different  in  different  persons.  Tastes,  opinions,  and  ages  create  different 
views.  Some  particularity,  some  whim  may  have  induced  him  to  purchase. 
What  is  desirable  to  one  is  not  so  to  another.  One  wants  a  wood  for  game,  an- 
other dislikes  tithes.  It  therefore  seems  a  little  arbitrary  to  insist  on  a  party 
taking  compensation.  Why  am  I  bound  to  take  what  I  did  not  mean  to  buy  ? 
You  say  you  will  give  me  compensation.  But  who  is  to  judge  of  the  compensa- 
tion ?  Can  you  be  sure  it  is  a  compensation  ?  It  is  a  difficult  thing  for  a  mas- 
ter to  ascertain  what  is  essential  to  the  enjoyment  of  the  estate,  and  what  is  a 
proper  compensation.  It  is  as  difficult  for  the  court  to  decide,  if,  having  all  the 
data  before  it,  it  decides,  as  it  is  then  proper  to  do,  without  sending  it  to  the 
master.  Are  you  to  look  at  the  land  in  its  present  state,  or  to  consider  in  what 
state  it  may  be  in  future?  It  is  said  a  purchaser  should  communicate  his  mo- 
tives for  purchasing.  If  so,  the  vendor  might  enhance  the  price.  It  is  also  said 
that  the  defendant's  objection  that  these  twelve  acres  are  essential  was  an  after 
thought.  Suppose  it  was.  Is  a  court  of  equity  to  say  no  advantage  can  be  taken 
of  the  objection  ?  Though  a  purchaser  may  not  at  first  be  aware  of  the  essen- 
tiality of  the  land  to  which  no  title  can  be  made,  yet,  if  he  afterward  finds  it  is 
essential,  is  a  court  of  equity  to  say  he  shall  not  avail  himself  of  the  objection  ?  " 
Sir  Thomas  Plumer,  V.  C,  in  KnatchbuU  v.  Grueber,  i  Mad.,  153. 

45 


7O0  COMPENSATION    AND    DAMAGES.  §   503. 

purchase  money  after  the  proper  reduction,  unless  each  lot 
was  essential  to  the  enjoyment  of  all  the  others.' 

§  503.  Enforcement  of  contract  with  compensation. — It 
is  not  easy  to  lay  down  any  definite  rule  as  to  what  defects 
are  proper  subjects  of  compensation,  A  purchaser,  as  al- 
ready stated,  will  be  compelled  to  accept  performance  with 
compensation,  notwithstanding  a  small  deficiency  in  the 
subject  of  the  sale,  as  :  six  acres  from  a  large  tract  of  land  ; ' 
or  fourteen  acres  sold  as  water  meadow,  when  only  twelve 
acres  answer  the  description  ; '  or  property  described,  on  a 
purchase  by  the  tenant  in  possession,  as  forty-six  feet  in 
depth,  afterward  ascertained  to  be  but  thirty-three  feet  deep  ;  * 
or  land  sold  at  auction  as  containing  nearly  two  acres,  when 
there  is  in  fact  l)ut  one  acre  and  twelve  rods.'     Where  real 

'  Poole  V.  Shergold,  2  Bro.  C.  C,  118;  Van  Eps  v.  Schenectady,  12  John., 
436;  Stoddart  v.  Smith,  5  Binney,  355.  In  Prendergast  v.  Eyre,  2  Hogan,  81, 
the  court  said  that,  though  the  principle  of  compensation  had  in  some  instances, 
in  relation  to  some  fragments  or  small  parts  of  an  estate  sold  or  of  rights  con- 
nected with  it,  been  applied  against  an  unwilling  purchaser,  yet  that  the  prin- 
ciple ought  not  to  be  extended  to  new  classes  of  cases  ;  that  there  was  no  case 
of  the  sale  of  two  distinct  pieces  of  property  for  one  entire  sum,  in  which  the 
court  had  undertaken,  upon  a  failure  of  title  to  one  of  them,  to  compel  the  pur- 
chaser to  take  the  other  with  compensation  without  regard  to  his  wishes  or  es- 
timate of  relative  value  ;  and  that  to  do  so,  would  be  inconsistent  with  the  prin- 
ciples upon  which  the  court  professed  to  exercise  jurisdiction  in  specific  perform- 
ance. 

"  M'Queen  v,  Farquhar,  11  Ves.,  467.      ^  Scott  v.  Hanson,  i  R.  &  My.,  128. 

^  King  V.  V^ilson,  6  Beav.,  124. 

^  Foley  v.  McKeown,  4  Leigh,  627.  "  It  is  now  settled  that  whenever  it  is 
possible  to  compensate  the  purchaser  for  any  article  which  diminishes  the  value 
of  the  subject  matter,  he  must  be  satisfied  with  such  compensation."  Thurlow, 
L.  C,  in  Rowland  v.  Norris,  i  Cox,  61.  To  entitle  a  party  to  compensation  the 
defect  complained  of  must  be,  ist,  such  that  it  can  be  made  the  subject  of  com- 
pensation or  of  recompense  in  damages  ;  cd,  it  must  be  a  case  in  which  the 
court  is  satisfied  that  the  purchaser  would  not  have  declined  the  contract  had 
he  known  of  the  defect  at  the  time  of  the  purchase.  Beyer  v.  Marks,  2  Sweeny, 
715.  In  this  case,  Spencer,  J.,  in  delivenng  the  opinion  of  the  New  York  supe- 
rior court,  laid  down  the  following  as  well  established:  "  ist,  a  purchaser  may 
insist  upon  a  good,  valid,  and  unincumbered  title  ;  2d,  he  is  entitled  to  receive 
substantially  from  his  vendor  all  the  property  for  which  he  contracted;  3d,  if  he 
obtains  such  a  title,  and,  by  the  conveyance  oflfered,  obtains  substantially  the 
property  for  which  he  contracted,  a  court  of  equity  will  enforce  performance  on 
his  part,  otherwise  not.  These  general  rules  are  not,  in  my  opinion,  modified  or 
affected  by  those  relating  to  compensation,  which  the  court  will  enforce,  in  all 
proper  cases,  in  favor  of  the  purchaser  against  the  vendor  when  specific  per- 
formance has  been  or  shall  be  decreed;  as,  for  instance,  in  the  case  of  a  slight 
or  immaterial  deficiency  in  the  estate,  a  variance  of  description,  or  an  incum- 
brance affecting  the  title.  The  doctrine  of  compensation,  as  a  rule  in  equity, 
follows  these  and  like  cases,  in  order  to  pay  the  purchaser  for  those  slight  de- 


§  503-  ENFORCEMENT  OF  CONTRACT.  707 

estate  was  sold  as  "containing  by  estimation  forty-one 
acres,  be  the  same  more  or  less,"  and  it  was  subsequently 
found  to  contain  but  thirty-five  acres,  it  was  held  that  the 
purchaser  was  not  entitled  to  an  abatement  for  the  defi- 
ciency;  the  estimation  not  importing  exactness.'  The  ven- 
dee will,  in  general,  be  compelled  to  complete  with  com- 
pensation for  the  defective  condition  of  buildings,  or  of  the 
land  in  point  of  cultivation  as  compared  with  the  descrip- 
tion." And  the  same  will  be  done  when  the  vendor  is  not 
able  to  give  possession,  and  the  property,  pending  a  suit 
for  specific  performance,  deteriorates.'  So,  an  overstate- 
ment of  the  annual  rents  of  property,  or  of  the  amount  of 
business  done,  and  income  derived  from  it,  may  be  the  sub- 
ject of  compensation.*  When  a  purchaser  cannot  get  a 
title  to  all  he  contracted  for,  if  he  can  get  the  substantial 
inducement  to  the  purchase,  he  may  be  compelled  to  accept 
so  much  as  the  vendor  can  give  a  good  title  for,  with  com- 
pensation ;  or,  in  case  the  title  is  defective  in  a  small 
matter,  perhaps  a  purchaser  might  be  compelled  to  accept 
the  title  with  an  indemnity  against  the  defect."  Where  a 
tract  of  one  hundred  and  eighty-six  acres  was  sold  as  free- 
hold, and  two  acres  were  leasehold,  it  was  held  that  the 
purchaser  must  take  the  estate  with  compensation."  And 
in  the  case  of  a  contract  for  a  term  of  ninety-nine  years 
which  was  afterward  found  to  be  two  or  three  years  less 

fects  that  in  equity  he  may  be  entitled  to,  if  in  equity  he  should  be  compelled  to 
fulfil  the  contract  of  purchase ;  and  in  such  cases  compensation  follows  as  a 
matter  of  right,  and,  as  I  hold,  must  be  provided  for  in  the  decree." 
1  Winch  V.  Winchester,  i  V.  &  B.,  375. 

*  Dyer  v.  Hargrave,  10  Ve?.,  505  ;  Grant  v.  Munt,  Cooper,  173.  It  will  be  no 
objection  to  a  specific  performance  that  the  conveyance  will  not  have  the  opera- 
tion the  purchaser  supposed  it  would.  Mildmay  v.  Hungerford,  2  Vern.,  243  ; 
Price  V.  Dyer,  17  Ves.,  356. 

''  Ferguson  v.  Tadman,  i  Sim.,  530;  Lord  v.  Stevens,  i  Y.  &:  C.  Ex.,  222  ; 
Foster  v.  Deacon,  3  Mad.,  394  ;  Phillips  v.  Silvester,  L.  R.  8,  Ch.  173. 

*  Cann  v.  Cann,  3  Sim.,  447  ;  Powell  v.  Elliot,  L.  R.  10,  Ch.  424.  See  Hep- 
bum  V.  Auld,  5  Cranch,  262  ;  King  v.  Bardeau,  6  Johns  Ch.,  38  ;  Harbers  v. 
Gadsden,  6  Rich.  Eq.,-284  ;  Stockton  v.  Union  Oil  Co.,  4  West  Va.,  273  ;  Lee 
V.  Howe,  27  Mo.,  521  ;  Bell  v.  Thompson,  34  Ala.,  633  ;  Smith  v.  Fly,  24  Texas, 
345  ;  Morss  v.  Elmendorf,  11  Paige  Ch.,  277;  Scott  v.  Bilgerry,  40  Miss.,  119. 

*  Evans  v.  Kingsberry,  2  Rand,  120.         "  Calcraft  v.  Roebuck,  i  Ves.,  221. 


7o8  COMPENSATION    AND    DAMAGES.  §  503. 

than  that,  the  purchaser  was  compelled  to  take  the  prop- 
erty."    Charges  and  incumbrances  upon  the  estate  will  be 
subjects  for  compensation.     Two  lots,  numbered  42  and 
43,  were  sold  together  at  auction.     There  were  two  build- 
ings on  lot  42,  one  in  front  and  the  other  in  the  rear,  both 
of  which  projected  about  twenty  inches  upon  lot  43.    The 
lots  were  sold  free  of  all   incumbrances,  except  a  lease  of 
lot  42,  which  lease  provided  for  the  disposal  of  the  build- 
ings at  its  termination.     The  terms   of  sale   described  the 
buildings  as  situated  on  lot  No.  42.     The  purchaser  insisted 
that  this  variation  in  the  condition  of  the  lots  ought  to  va- 
cate the  sale.     Chancellor  Kent  held  that  the  objection  was 
insufficient  to  justify  the  purchaser  in  abandoning  his  con- 
tract.    But,  as  it  might  diminish  the  value  of  the  purchase 
below  what  it  would  have  been  worth  if  the  projection  had 
not  existed,  he  directed  a  reference  to  ascertain  the  amount 
of  such  diminution,  if  any."     Where,  upon  the  sale  of  one 
hundred  and  forty  acres  of  land,  it  was  stated  that  thirty- 
two  acres  were  tithe  free,  and  it  turned  out  otherwise,  it 
was  held  to  be  a  proper  case  for  compensation.'     So  of  a 
fixed  annual  payment  charged  upon  land  in  lieu  of  tithe  ;  * 
and  rent  charges  of  a  small   amount.'     The  reservation  of 
a  merely  nominal  rent  would  not  be  such  an   objection  to 
the  title  as  would  justify  a  court  in  refusing  a  specific  per- 
formance, even  where  the  defendant  had  contracted  to  pur- 
chase without   any  notice  that  such  nominal   rent  was  re- 
served. °     Equity  will  compel  a  vendee  to  take  a  title  sub- 
ject to  a  pecuniary  charge  against  which  there  is  adequate 
security.'     In  case  of  a  mortgage  on  the  land  for  a  small 
sum  compared  with  the  value  of  the  property,  which  sum, 
with  interest  to  the  day  of  the  maturity  of  the  mortgage, 

'  Mortlock  V.  Buller,  lo  Ves.,  306 ;  Halsey  v.  Grant,  13  lb.,  'j'j. 
'  King  V.  Bardeau,  supra.  ^  Binks  v.  Lord  Rokeby,  2  Swanst.,  222. 

•*  Rowland  v.  Norris,  i  Cox,  59.     ^  Esdaile  v.  Stephenson,  i  Sim.  &  Stu.,  122. 
*  Ten  Broeck  v.  Livingston,  i  Johns  Ch.,  356  ;  Winne  v.  Reynokls,  6  lb.,  407. 
'  Halsey  v.  Grant,   13  Ves.,   75;  Horniblow  v.  Shirley,  lb.,   181  ;    Fildes  v. 
Hooker,  3  Mad.,  193 ;  Thompson  v.  Carpenter,  4  Pa.  St.,  132. 


§  504-  MATERIAL    DEFECTS    NOT    SUBJECTS    FOR.  7O9 

the  vendor  offers  to  deduct  from  the  purchase  money,  there 
is  no  ground  for  the  vendee's  refusal  to  perform."  Where 
a  vendee  sought  to  recover  money  paid  on  the  contract  of 
purchase,  claiming  that  the  vendor  was  unable  to  fulfil  on 
his  part,  by  reason  of  an  undischarged  lien  for  taxes,  and  it 
appeared  that  the  balance  of  the  purchase  money  remain- 
ing due  was  much  larger  than  was  required  to  relieve  the 
land  of  this  lien,  it  was  held  that  the  action  could  not  be 
maintained."  Land  having  been  sold  free  of  incumbrances, 
the  vendee,  after  taking  possession,  making  valuable  im- 
provements, and  paying  a  portion  of  the  price,  ascertained 
that  there  were  mortgages  on  the  land,  and  the  vendor  de- 
clared a  forfeiture  and  recovered  in  ejectment.  It  was  de- 
creed, on  a  bill  filed  by  the  vendee  to  enjoin  the  further 
prosecution  of  the  proceedings  in  ejectment,  that  the  ven- 
dee should  pay  the  balance  of  the  purchase  money,  less  the 
amount  of  the  incumbrances,  and  the  vendor  execute  a 
conveyance  with  the  covenants  stipulated  in  the  contract.' 

§  504.  Material  defects  not  su'bjects  for  ccmpeusation. — 
When  the  deficiency  is  essential  to  the  enjoyment  of  the 
residue,  specific  performance  will  not  be  enforced  against 
the  purchaser.*  As  to  this,  each  case  must  of  course  be 
governed  by  its  own  circumstances.  There  is  no  principle 
of  equity  more  artificial  than  that  which  goes  to  determine 
whether  the  part  to  which  no  title  can  be  made  is  material, 
and  whether  the  purchaser  shall  be  required  to  take  the  re- 
mainder with  any  and  what  compensation  for  the  want  of 
title  to  the  defective  part.  Where  a  wharf  and  jetty  were 
sold,  the  purchaser  was  not  compelled  to  take  the  wharf 
without  the  jetty,  the  latter  being  essential  to  the  use  of 
the  former."  The  same  was  held  in  the  case  of  a  house 
sold,  the  vendor  failing  to  make  out  title  to  a  small  strip  of 
land  between  the  house  and  the  highway  ;  °  also  where  a 

'  Guynet  v.  Mantel,  4  Duer,  86.     See  Tiernan  v.  Roland,  15  Pa.  St.,  429. 

"^  Marsh  v.  Wyckoff,  10  Bosw.,  202. 

»  Wallace  v.  McLaughlin,  57  III.,  53.     See  Hinckley  v.  Smith,  51  N.  Y.,  21. 

*  Howard  v.  Kimball,  65  N.  C,  175.  ^  Piers  v.  Lambert,  7  Beav.,  546. 

•  Perkins  v.  Ede,  16  Beav.,  193. 


7IO  COMPENSATION    AND    DAMAGES.  §   5O4. 

yard,  belonging  to  the  premises  contracted  for,  was  held 
from  year  to  year,  instead  of  for  the  same  term  of  years  as 
the  rest  of  the  property.'  A  court  of  equity  will  not 
lend  its  aid  to  compel  a  purchaser  to  take  a  conveyance 
which  does  not  transfer  such  a  title  as  he  supposed 
he  was  contracting  for  when  he  entered  into  the  agree- 
ment ;  unless  there  is  something  in  the  case  to  show 
that  it  was  the  understanding  of  the  parties  that  he 
was  to  run  the  risk  as  to  the  validity  of  the  ven- 
dor's title.  In  a  suit  for  specific  performance,  it  appear- 
ed that  to  give  relief  on  the  principle  of  compensation 
would  exempt  from  the  conveyance  a  homestead  right  em- 
bracing the  dwelling-house,  and  leave  the  balance  of  the 
premises  subject  to  the  contingent  right  of  dower  of  the 
defendant's  wife.  This  would  necessarily  exclude  from  the 
conveyance  a  very  material  part  of  the  subject  matter  of 
the  contract,  and  almost  certainly  result  in  great  pecuniary 
injury  to  all  parties  interested.  The  adjustment  of  com- 
pensation would  be  difficult  in  such  a  case,  and  especially 
that  part  of  it  founded  on  the  contingent  dower  right. 
The  interest  of  the  defendant's  wife  would  also  be  exposed 
to  some  detriment  by  partial  alienation.  It  was  held  that 
these  considerations  taken  together  were  sufficient  to  show 
that  the  court  ought  not  to  compel  a  conveyance  with 
compensation.'  Where  a  contract  of  sale  embraced  six 
hundred  and  eighty-six  acres  of  land  for  cultivation,  and 
the  title  to  two  hundred  and  nine  acres  of  it  was  ascer- 
tained to  be  defective,  the  vendee  was  not  compelled  to 
take  the  residue,  although  it  was  separated  from  the  other 
portion  by  a  public  highway.'  In  one  case  the  court 
thought  that  a  defect  in  the  title  of  eleven  acres  out  of 
seventy  "would    probably  be  material  to  the  suit."'      A 

'  Dobell  V.  Hutchinson,  3  A.  &  E.,  355.         ^  Phillips  v.  Stauch,  20  Mich.,  369. 

'Jackson  v.  Ligon,  3  Leigh,  161.  Whether  where  under  a  contract  for  the 
sale  of  several  lots  the  title  of  one  of  them  is  defective,  specific  performance  will 
be  decreed  as  to  the  rest,  will,  of  course,  depend  upon  the  circumstances  of  the 
case.     Casamajor  v.  Strode,  2  My.  &  K.,  722. 

*  Lord  Eldon  in  Osbaldiston  v.  Askew,  2  J.  &  W.,  539. 


§   504-  MATERIAL    DEFECTS    NOT    SUBJECTS    FOR.  7 1  I 

brewer,  who  contracted  for  the  purchase  of  a  pubHc  house 
for  the  purpose  of  his  business,  was  held  not  obHged  to 
take  it  subject  to  a  lease  having  eight  years  yet  to  run,  al- 
though it  had  been  described  as  occupied  by  a  tenant.' 
Where  it  is  stipulated  in  a  contract  for  the  sale  of  a  house, 
that  it  shall  be  vacated  by  a  person  in  possession  by  the 
day  fixed  for  the  payment  of  the  purchase  money,  if  the 
tenant  unlawfully  remain  in  possession  subsequent  to  that 
day,  the  vendor  cannot  compel  specific  performance." 
When  easements  are  exercisable  over  the  land,  the  pur- 
chaser will  not  in  general  be  compelled  to  take  it  with 
compensation  ;  as  a  public  right  of  way  across  land  sold 
for  building  purposes ; '  or  the  right  to  draw  water,  from  a 
large  portion  of  the  land  sold,  in  water-courses  for  the  use 
of  the  adjoining  premises.*  The  existence  of  a  right  of 
entry  on  the  land  contracted  to  be  sold,  which  would  be 
likely  to  interfere  with  the  enjoyment  of  the  property,  will 
deprive  the  vendor  of  the  right  to  compel  specific  perform- 
ance.* Where  a  lease  is  sold  the  purchaser  cannot  be  com- 
pelled to  take  a  substantially  shorter  term  than  that  con- 
tracted for ; '  nor  an  under-lease,  instead  of  an  original 
lease ; '  nor  a  new  lease,  where  the  contract  is  for  the  as- 
signment of  a  subsisting  lease;*  nor  an  undivided  interest 
in  land,  instead  of  an  entirety ; "  nor  a  reversion  expectant 
on  a  life  estate,  instead  of  an  estate  in  possession.'"  Where 
a  contract  for  a  leasehold  house  stated  that  by  the  lease 


■  Caballero  v.  Henty,  L.  R.  9,  Ch,  447.         *  Howe  v.  Conley,  16  Gray,  552. 

3  Dykes  v.  Blake,  4  Bing.  N.  C,  463. 

*  Shackleton  v.  Sutcliffe,  i  De  G.  &  Sm.,  609.  In  this  case  it  was  held  that 
the  defect  was  not  the  subject  of  compensation,  notwithstanding  a  condition 
that  a  mistake  in  the  description  or  an  error  in  the  particulars  should  not  annul 
the  contract. 

^  Burnell  v.  Brown,  i  Jac.  &  W.,  172  ;  Larkin  v.  Lord  Rosse,  10  Ir.  Eq.,  70. 

®  Belworth  v.  Hassell,  4  Camp,  140 ;  Long  v.  Fletcher,  2  Eq.  Cas.  Abr.,  5  ; 
Forrer  v.  Nash,  35  Beav.,  167. 

'  Madeley  v.  Booth,  2  De  G.  &  S.,  718.  *  Mason  v.  Corder,  2  Marsh,  332. 

'  Atty.  Genl.  v.  Day,  i  Ves.  Sen.,  218 ;  Dalby  v.  Pullen,  3  Sim.,  29,  Affd.  i  R. 
&  M  ,  296;  Roffey  v.  Shollcross,  4  Mad.,  227. 

'"  Collier  v.  Jenkins,  Younge,  295  ;  Hughes  v.  Jones,  8  Jur.  N.  S.,  399. 


712  COMPENSATION    AND    DAMAGES.  §  505. 

no  offensive  trade  was  to  be  carried  on,  and  that  the  prem- 
ises could  not  be  let  to  a  coffee-house  keeper,  or  working 
hatter,  and  it  was  provided  that  there  should  be  compensa- 
tion in  case  of  error  or  misstatement,  and  the  lease  in  fact 
prohibited  the  doing  of  a  great  many  other  things  besides 
those  mentioned,  including  the  sale  of  any  provisions,  the 
purchaser  was  held  entitled  to  rescind  the  contract/  The 
purchaser  cannot  be  compelled  to  take  property,  which, 
owing  to  acts  of  the  vendor  in  felling  timber,  pulling  down 
buildings,  or  otherwise,  is  materially  changed  from  the  con- 
dition it  was  in  when  the  contract  was  executed."  The 
whole  of  the  premises  contracted  for  may  be  essential  to 
the  object  of  the  purchase,  for  the  reason  that  if  a  portion 
were  not  conveyed,  it  might  be  used  in  a  manner  prejudi- 
cial to  the  value  and  enjoyment  of  the  residue ;  as  where 
land  near  a  mansion  is  capable  of  being  turned  to  profit- 
able account  in  making  brick,  and  of  being  thereby  con- 
verted into  a  nuisance.'  But  the  apprehended  injury  must 
be  probable,  and  not  merely  speculative  and  conjectural.' 

§  505.  Right  of  purchaser  to  accept  a  partial  fulfilme^it. 
— The  vendee  may,  in  many  cases,  insist  upon  a  part  per- 
formance of  an  agreement  which  the  vendor  cannot  fully 
perform,  with  compensation  for  the  residue."  The  vendor 
is  not  required  to  remain  passive  until  the  vendee  deter- 
mines which  course  he  will  pursue.  He  may  file  a  bill  in 
equity  for  the  purpose  of  putting  the  vendee  to  his  elec- 
tion, and,  if  he  refuses  to  accept  a  title,  to  compel  him  to 
abandon  the  contract  and  restore  the  possession.'     Where 

'  Flight  V.  Booth,  i  Bing.  N.  C,  370. 

-  Duke  of  St.  Albans  v.  Shore,  i  H.  Bl..  271  ;  Granger  v.  Worms,  4  Canip,  83. 

3  KnatchbuU  v.  Grueber,  i  Mad.,  153.  '  Ibid. 

^  Barnes  v.  Wood,  L.  R.  8,  Eq.  421  ;  Jones  v.  Shackleford,  2  Bibb.,  410;  Bass 
V.  Gilliland,  5  Ala.,  759;  Mathews  v.  Patterson,  2  How.  Miss.,  729;  Wright  v. 
Young,  6  Wis.,  127;  McConnell  v.  Brillhart,  17  111.,  354;  Collins  v.  Smith,  i 
Head,  Tenn.,  251  ;  Harding  v.  Parshall,  56  111.,  219;  Wilson  v.  Cox,  50  Miss., 
133.  Where  the  contract,  as  to  a  portion  of  the  land  agreed  to  be  conveyed,  is 
uncertain,  such  portion  cannot  be  rejected  and  the  contract  be  enforced  as  to 
the  residue  with  compensation,  when  the  residue  and  compensation  can  only  be 
shown  by  parol.     King  v.  Ruckman,  20  N.  J.  Eq.,  317. 

"  Davison  v.  Perrine,  22  N.  J.  Eq.,  87. 


§  505*  RIGHT    OF    PURCHASER    TO    ACCEPT.  713 

the  vendor  contracted  to  sell  land  of  which,  as  it  afterward 
appeared,  he  only  owned  the  undivided  half,  and  he 
brought  an  action  against  the  vendee  to  recover  the  pos- 
session, or  to  enforce  the  payment  of  the  purchase  money, 
it  was  held  that  the  defendant  might  elect  to  take  the  half 
upon  payment  of  one-half  of  the  purchase  money,  or  to 
have  the  contract  rescinded  upon  repayment  by  the  plain- 
tiff of  what  he  had  received,  with  compensation  for  the  de- 
fendant's improvements ;  and  that  if  waste  had  been  com- 
mitted by  the  defendant,  the  plaintiff  was  entitled  to  re- 
cover the  damages  caused  to  the  property  thereby.'  A. 
executed  to  B.  a  bond  for  the  conveyance  of  certain  lots 
on  payment  of  the  first  instalment  of  the  purchase  money. 
Before  the  bond  was  executed  the  agent  of  A.  had  sold, 
without  A.'s  knowledge,  one  of  the  lots.  On  a  bill  for 
specific  performance,  it  was  held  that  B.  might  take  a  deed 
of  the  lots  to  which  a  title  could  be  made,  with  compensa- 
tion, or  have  the  contract  rescinded  ;  that  B.,  if  he  elected 
the  former,  was  entitled  to  a  relinquishment  of  dower  in 
the  lots  conveyed,  and,  in  case  of  refusal  on  the  part  of  the 
wife,  to  an  abatement  from  the  purchase  money  therefor." 
The  plaintiff"  offered  to  take  a  lease  of  a  farm  belonging  to 
the  defendant  at  a  rent  of  five  hundred  pounds  per  annum, 
specifying  in  his  offer  the  inclosures  he  desired  to  take, 
with  their  number  of  acres,  amounting  in  the  whole  to  two 
hundred  and  forty-nine  acres.  The  defendant's  agent 
wished  to  let  only  two  hundred  and  fourteen  acres  with 
this  farm  ;,but  he  accepted  the  plaintiff's  proposition  with- 
out ascertaining  the  number  of  acres  included  in  it.      He 

'  Erwin  v.  Myers,  46  Pa.  St.,  96. 

^  Wingate  v.  Hamilton,  7  Ind.,  73.  Where  an  ante-nuptial  agreement  pro- 
vided that  certain  property  should  be  irrevocably  devoted  to  the  M'ife's  use  at 
times  specifically  designated,  so  as  to  guard  it  against  accidents  to  her  husband's 
fortune,  it  was  held  too  late  to  attempt  to  create  the  fund  after  her  husband's 
death,  and  when  her  legal  right  to  a  share  in  his  estate  had  become  vested  ; 
that,  although  she  could  then  receive  the  whole  amount  to  which  she  would 
have  been  entitled  if  the  contract  had  been  performed,  yet  it  was  for  her  to  elect 
whether  or  not  she  would  accept  performance.  Sullings  v.  Sullings,  9  Allen, 
254. 


714  COMPENSATION    AND    DAMAGES.  §   506. 

had  in  fact  let  one  of  the  inclosures  to  another  person.  A 
previous  offer  had  been  made  by  a  former  tenant  for  the 
same  farm  as  containing  two  hundred  and  thirty-five  acres, 
and  the  defendant's  agent  admitted  that  he  thought  the 
plaintiff's  offer  was  for  the  same  quantity  of  land  as  the 
former  tenant's.  The  plaintiff,  in  a  suit  for  specific  per- 
formance, having  stated  his  willingness  to  take  a  lease  of 
the  tvyo  hundred  and  fourteen  acres  at  a  proportionately 
reduced  rent,  it  was  held  that  the  defendant  must  give  the 
plaintiff  a  lease  of  two  hundred  and  fourteen  acres  at  a  rent 
reduced  from  five  hundred  pounds  in  the  proportion  of  two 
hundred  and  fourteen  to  two  hundred  and  thirty-five.' 

§  506.  Where  the  ptw chaser  knew  or  might  have  known 
of  defects. — The  right  of  the  vendee,  however,  to  elect 
whether  or  not  he  will  accept  a  partial  performance,  is  sub- 
ject to  an  important  qualification.  When  the  vendee  knew, 
at  the  time  of  entering  into  the  contract,  that  the  vendor 
had  a  title  to  only  a  part  of  the  land  he  agreed  to  convey, 
and  there  is  no  special  ground  entitling  the  vendee  to 
equitable  relief,  a  court  of  equity  will  not  decree  compensa- 
tion, but  will  leave  him  to  his  legal  remedy,  it  being  pre- 
sumed, in  such  a  case,  that  the  sale  w^as  meant  by  the  par- 
ties to  include  only  such  an  interest  in  the  property  as  the 
vendor  possessed.*  For  the  same  reason,  if  the  vendee,  at 
the  time  of  contracting  for  the  purchase,  knows  of  a  defect 
in  the  description,  he  will  not  be  entitled  to  compensation 
therefor.'  But  the  vendee  will  not  be  required  to  have 
knowledge  of  any  substantial  matter  of  which  the  vendor  is 
bound  to  inform  him.  Where  premises  sold  were  described 
as  forty-six  feet  deep,  and  the  depth  was  in  fact  only  thirty- 
three  feet,  it  was  held  that  the  vendee  was  entitled  to  an 

1  McKenzie  v.  Hesketh.  L.  R.  7,  Ch.  D.  675. 

"^  Castle  V.  Wilkinson,  L.  R.  5,  Ch.  534 ;  Lawrenson  v.  Butler,  i  Sch.  &  Lef., 
13;  Nelthorpe  v.  Holgate,  i  Coll.,  203;  Peeler  v.  Levy,  26  N.J.  Eq.,  330.  See 
ante,  §  206.  Cases  in  which  the  vendee  knows,  when  he  enters  into  the  contract, 
that  the  vendor  does  not  own  any  portion  of  the  property,  are  governed  by  a 
different  principle,  and  will  be  considered  hereafter. 

^  Dyer  v.  Hargrave,  10  Ves.,  505. 


§  S06.         WHERE    PURCHASER    MIGHT    HAVE    KNOWN.  715 

abatement,  although  he  was  in  possession  as  tenant  at  the 
time  of  the  purchase  ;  because  he  would  not  necessarily 
know  the  exact  measurement,  and  might  have  relied  on  the 
representation."  Although  the  vendee  knew,  when  he  en- 
tered into  the  contract,  that  the  vendor's  title  was  defective, 
yet  if  it  was  agreed  between  the  parties  that  the  vendor 
should  make  a  good  title  by  a  certain  day,  the  vendee's  previ- 
ous knowledge  of  defects  in  the  title,  is  not  a  reason  for 
compelling  him  to  take  such  title  as  the  vendor  can  con- 
vey/ The  neglect  of  the  purchaser  to  make  inquiry,  may 
have  the  same  effect  on  his  rights  as  actual  notice.  Where, 
when  he  entered  into  the  contract,  he  knew  that  a  tenant 
was  in  possession,  and  did  not  inquire  as  to  the  nature  and 
extent  of  the  tenant's  interest,  it  was  held  that  he  was  not 
entitled  to  an  abatement  on  the  ground  that  the  property 
was  subject  to  a  lease."  Where  a  house  was  stated  to  be  a 
residence  fit  for  a  respectable  family,  the  court  said  that  the 
purchaser  might  have  seen  the  house  and  judged  for  him- 
self, and  he  had  no  reason  to  complain,  when  ordinary  dili- 
gence would  have  enabled  him  to  know  certainly.^  So, 
compensation  will  not  be  allowed  for  defects  which  are  open 
to  common  observation  ;  as  where  a  farm  which  the  pur- 
chaser had  himself  inspected,  was  described  as  lying  within 
a  ring  fence,  when  it  did  not  in  fact  so  lie.'  But  defects, 
to  be  within  the  rule,  must  be  patent  to  everybody.  There- 
fore the  court  gave  compensation  for  dry  rot  in  a  house, 
which  was  not  easily  discoverable.'     When  the  defect  is  a 

'  King  V.  Wilson,  6  Beav.,  124. 

"  Jackson  v.  Ligon,  3  Leigh,  161.  In  this  case,  Tucker,  J.,  said  :  "  If,  in  the 
present  case,  the  purchaser  will  be  concluded  from  objecting  to  the  title,  by  the 
fact  of  his  prior  knowledge  of  its  defects,  it  is  not  perceived  what  course  a  buyer 
is  to  take  who  desires  to  secure  himself  against  known  defects.  The  case  of 
Stockton  V.  Cook,  3  Munf.,  68,  very  clearly  shows  the  understanding  of  the  court 
that  a  covenant  against  incumbrances  comprehends  known  as  well  as  unknown 
incumbrances,  and  that  the  vendee  is  not  precluded  by  his  previous  knowledge 
from  claiming  the  fulfilment  of  the  covenant.  Were  it  otherwise,  it  would  be 
impossible  for  him  to  provide  for  his  security." 

2  James  v.  Lichfield,  L.  R.  9,  Eq.  51.  Contra,  Caballero  v.  Henty,  L.  R.  9, 
Ch.  447. 

*  Magennis  v.  Fallon,  2  Moll.,  561.  ^  Dyer  v.  Hargrave,  10  Ves.,  505. 

•  Grant  v.  Munt,  Cooper,  173. 


7l6  COMPENSATION    AND    DAMAGES.  §§   507,    508. 

surprise  to  both  parties,  and  compensation  cannot  be  allowed 
without  doing  injustice  to  the  vendor,  the  vendee  will  be 
called  upon  to  elect  either  to  perform,  or  abandon  the  con- 
tract' 

§  507.  Where  loss  is  i7tcapable  of  ascertainment  or  con- 
tingent.— Although  compensation  will  be  allowed,  notwith- 
standing the  just  amount,  owing  to  the  absence  of  data, 
cannot  be  ascertained  with  absolute  certainty,  but  only  the 
judgment  of  competent  persons;'  yet  compensation  will 
sometimes  be  refused  for  the  reason  that  there  is  no  means 
of  arriving  at  a  reasonable  estimate  of  it ;  as  where,  before 
completion,  ornamental  trees  are  cut  down,  affecting  the 
value  of  the  property  as  a  residence.'  When  the  loss  is  not 
certain,  but  contingent,  indemnity,  which  is  a  species  of  com- 
pensation, may  be  required  ;  and  the  vendee  may  sometimes 
elect  to  have  an  indemnity,  where  the  vendor  could  not 
compel  the  purchaser  to  accept  it ;  as  against  a  widow's 
dower,*  or  against  a  material  incumbrance,'  or  in  case  of  a 
misdescription, °  or  as  to  a  contingency  which  endangers 
the  entire  subject  matter  of  the  contract." 

§  508.  Agree7nejit  that  there  shall  be  no  allowance  for 
defects. — The  right  to  compensation  may  be  cut  off  by  a 
provision  in  the  contract  that  errors  or  defects  shall  not  be 
the  subject  of  compensation  ;  but  not  if  the  error  or  defect 
is  such  as  to  materially  change  the  contract  intended.'  At 
an  auction  sale  of  real  estate,  after  a  general  description  of 
the  property  in  the  particulars,  there  was  added,  in  much 


'  Durham  v.  Legard,  34  L.  J.  N.  S.  Ch.,  589. 
"^  Ramsden  v.  Hirst,  4.  Jur.  N.  S.,  200. 

3  Magennis  v.  Fallon,  supra.  And  see  Lord  Brooke  v.  Rounthwaite,  5  Hare, 
298  ;  ante,  %  204. 

*  Wilson  V.  Williams,  3  Jur.  N.  S.,  810.  '  Wood  v.  Bemal,  19  Ves.,  220. 

•  Ridgway  v.  Gray,  i  M'N.  &  G.,  109. 

'  Fildes  V.  Hooker,  3  Mad.,  193.  See  Belmanno  v.  Lumley,  i  V.  &  B.,  224; 
Paton  V.  Brebner,  i  Bligh,  66  ;  Aylett  v.  Ashton,  i  My.  &  Cr.,  105  ;  Milligan  v. 
Cooke,  16  Ves.,  i  ;  Patterson  v.  Long,  6  Beav.,  598  ;  Nouaille  v.  Flight,  7  lb.,  521  ; 
Walker  v.  Barnes,  3  Mad.,  247;  Ridg.vay  v.  Gray,  i  Mac.  &  G.,  109;  Bain- 
bridge  V.  Kinnaird,  32  Beav.,  346  ;  Lounsbury  w  Locander,  25  N.  J.  Eq.,  555. 

"  Flight  V.  Booth,  i  Bing.  N.  C,  370 ;  Painter  v.  Newby,  1 1  Hare,  26. 


§   5<^9'  RIGHT    TO    COMPENSATION    AFFECTED.  717 

smaller  type,  the  following :  "  The  site  of  the  said  messu- 
ages or  tenements  and  outbuildings,  contains  753  square 
yards,  or  thereabouts."  The  estate  in  fact  contained  only 
573  square  yards.  A  condition  of  sale  provided  that  "if 
any  error,  misstatement,  or  omission  in  the  particulars  be 
discovered,  the  same  shall  not  annul  the  sale,  nor  shall  any 
compensation  be  allowed  by  the  vendor  or  purchaser  in  re- 
spect thereof."  It  was  held  that  the  conditions  must  be 
construed  as  intended  to  cover  small  unintentional  errors 
and  inaccuracies,  and  not  reckless  and  careless  statements, 
and  that  so  large  a  deficiency  as  180  square  yards,  entitled 
the  purchaser  to  compensation.' 

§  509.  Right  to  compensation  affected  by  nature  of  sale. 
— Where  a  contract  of  sale  of  real  estate  is  entire,  for  a 
gross  sum,  and  there  is  a  failure  of  title  to  a  portion  of  the 
land  from  a  cause  of  which  both  parties  were  ignorant,  there 
is  no  middle  ground  between  a  rescission  of  the  whole  con- 
tract, or  a  performance  of  the  whole ;  and  if  the-vendee  de- 
clines to  rescind,  he  must  pay  the  whole  purchase  money."" 
If,  for  instance,  the  vendee  agrees  to  pay  a  sum  certain  in 
gross  for  one-half  of  a  farm  by  name,  without  mention  of 
the  quantity,  reference  to  a  plat,  or  any  stipulation  on  the 
part  of  the  vendor,  the  thing  bargained  for  being  half  of  a 
particular  farm  for  so  much  money,  there  is  no  cause  for  a 
deduction  for  a  deficiency  in  quantity.  But  it  is  otherwise, 
when  the  vendee  makes  the  purchase  under  the  belief,  which 
he  has  good  reason  to  entertain,  that  the  farm  consists  of  a 
pfiven  number  of  acres,  and  it  is  afterward  ascertained  to  con- 
tain  very  many  acres  less  ;  especially  if  the  mistaken  idea  is 
caused  by  the  representation  of  the  vendor  and  the  exhi- 
bition of  a  plat.'    Where  the  land  sold  was  described  as  in- 

1  Whittemore  v.  Whittemore,  L.  R.  8,  Eq.  603. 

-  Glassell  v.  Thomas,  3  Leigh,  113;  Bailey  v.  James,  li  Gratt.,  468;  Gillilan 
V.  Hinckle,  8  W.  Va.,  262  ;  Etheridge  v.  Vernoy,  70  N.  C,  713. 

3  Kent  V.  Carcaud,  17  Md.,  291.  And  see  Foley  v.  M'Keown,  4  Leigh,  678  ; 
Miller  v.  Chetwood,  i  Green  N.  J.  Ch.,  199;  Winston  v.  Browning,  61  Ala.,  80. 
"  The  number  or  quantity  of  acres,  after  a  certain  description  by  metes  and 
bounds,  or  by  other  known  specifications,  is  but  matter  of  description,  and  does 


7l8  COMPENSATION    AND    DAMAGES.  §   5O9. 

closed  by  a  certain  fence,  and  the  fence  in  fact  took  in  five 
feet  of  a  street,  which,  at  the  time  of  the  sale,  was  unknown 
to  both  parties,  it  was  held  that  the  vendee  was  entitled  to 
an  abatement  from  the  price  for  the  deficiency.'  A  de- 
scription, how^ever,  of  the  land  by  its  boundaries,  or  the  in- 
sertion of  the  words  "more  or  less,"  or  equivalent  words, 
in  an  agreement  for  the  sale  and  purchase  of  land,  will 
control  a  statement  of  the  quantity  of  land,  or  of  the 
length  of  the  boundary  lines,  so  that  neither  party  will  be 
entitled  to  relief  on  account  of  a  deficiency  or  surplus,  un- 
less in  case  of  so  great  a  difference  as  will  naturally  raise 
the  presumption  of  fraud  or  gross  mistake  in  the  very  es- 
sence of  the  contract.  A  contract  provided  that  the  pur- 
chaser should  pay  "seven  thousand  dollars  for  wharf  lot  on 
Border  Street,"  and  further  described  the  lot  as  bounded  on 
two  sides  by  the  ship-yards  of  persons  named,  and  as  "  meas- 
uring about  two  hundred  and  twenty  feet  on  Border  Street, 
more  or  less."  It  appeared  that  the  land  was  a  wharf  lot 
lying  between  and  bounded  by  the  two  ship-yards,  but  that 
it  in  fact  measured  only  one  hundred  and  seventy  feet  on 
Border  Street,  and  that  the  value  of  the  land  was  in  pro- 
portion to  the  number  of  feet  on  the  line  of  that  street. 
It  further  appeared  that,  long  before  the  contract,  the  title 
deeds  of  the  property  were  on  the  public  records,  and 
showed  the  actual  boundaries  and  extent  of  the  lot ;  but 
that  neither  the  plaintiff's  agent,  with  whom  the  contract 
was  made,  nor  the  defendant  had  actual  knowledge  of  those 
deeds.  It  was  held  that  there  was  no  ground  for  an  abate- 
ment of  the  price.'     When  property  is  sold  as  containing 

not  amount  to  any  covenant,  though  the  quantity  of  acres  should  fall  short  of  the 
given  amount.  Whenever  it  appears  by  the  definite  boundaries,  or  by  words  of 
qualification,  as  'more  or  less,'  or  as  'containing  by  estimation,'  or  the  like, 
that  the  statement  of  the  quantity  of  acres  in  the  deed  is  mere  matter  of  descrip- 
tion, and  not*of  the  essence  of  the  contract,  the  buyer  takes  the  risk  of  the  quan- 
tity if  there  be  no  admixture  of  fraud  in  the  case."     4  Kent's  Com.,  466. 

'  Brooks  V.  Riding,  46  Ind.,  15. 

'  Noble  V.  Gookins,  99  Mass.,  231,  per  Gray,  J.,  who  delivered  the  opinion  of 
the  court,  which  was  unanimous,  citing  Stebbins  v.  Eddy,  4  Mason,  414;  Mar- 
vin V.  Bennett,  8  Paige  Ch.,  312  ;  Morris  Canal  Co.  v.  Emmett,   9  lb.,    168; 


^   509.  RIGHT    TO    COMPENSATION    AFFECTED.  719 

a  given  number  of  acres,  at  a  certain  price  per  acre,  and  it 
contains  less  than  the  number  of  acres  specified,  the  pur- 
chaser will  be  entitled  to  compensation,  although  the  prop- 
erty was  estimated  to  contain  that  number  of  acres  in  an 
old  survey.'  As,  in  such  a  case,  both  parties  are  presumed 
to  have  been  influenced  in  their  bargain  by  the  supposed 
quantity,  if  a  misrepresentation  be  made  as  to  the  quantity, 
even  innocently,  the  purchaser  may  claim  what  the  vendor 
is  able  to  convey,  with  a  deduction  from  the  purchase 
money  for  the  deficiency."  Where  a  tract  of  land  was  de- 
scribed as  containing  twenty-one  thousand  seven  hundred 
and  fifty  acres,  when  it  in  fact  contained  but  eleven  thou- 
sand eight  hundred  and  fourteen  acres,  the  mistake  being 
caused  by  following  old  particulars  of  sale,  and  it  appeared 
that  the  sale  was  based  on  the  rental,  and  not  on  the 
quantity,  it  was  held  that  the  vendee,  if  he  insisted  on  the 
purchase,  must  take  the  contract  as  it  stood,  without  com- 
pensation.' Where,  however,  the  land  exceeded  the  de- 
scription by  a  large  number  of  acres,  and  the  purchaser  in- 
sisted on  performance  as  to  the  whole,  he  was  compelled  to 
allow  the  vendor  compensation  for  the  excess.'  Much 
must  of  course  depend  upon  the  language  and  nature  of 
the  contract,  whether  or  not  the  number  of  acres  specified 
is  of  the  essence  of  the  purchase,  or  is  only  description. 
When  a  tract  of  land  is  sold  by  name  for  a  given  sum, 
neither  party  claiming  to  know  exactly  the  number  of 
acres,  but  as  so  much  more  or  less,  and  there  is  a  slight 
variation  in  the  estimated  quantity,  it  will  not  present  a 
case  for  compensation  in  respect  to  either  an  excess  or 
deficiency." 

Faure  v.  Martin,  7  N.  Y.,  219 ;  Ketchum  v.  Stout,  20  Ohio,  453  ;  Stull  v.  Hurrt, 
9  Gill,  446;  Weart  v.  Rose,  16  N.  J.  Eq.,  290.  And  see  Stephens  v.  Hudson, 
45  Ga.,  513. 

1  Shovel  V.  Bogan,  2  Eq.  Ca.  Abr.,  688. 

"  Hill  V.  Buckley,  17  Ves.,  394  ;  Glover  v.  Snnith,  i  Dessaus  Eq.,  433  ;  Wain- 
right  V.  Read,  573  ;  Durett  v.  Simpson,  3  Monroe,  519  ;  Reynolds  v.  Vance,  4 
Bibb.,  215  ;  Nelson  v.  Carrington,  4  Munf.,  332. 

3  Durham  v.  Legard,  34  L.  J.  N.  S.,  589.       ■*  Leslie  v.  Tompson,  9  Hare,  273. 

'  Pedens  v.  Owens,  Rice  Eq.,  55  ;  Smith  v.  Evans,  6  Binney,  102  ;  Stebbins 
V,  Eddy,  4  Mason,  414 ;  Brown  v.  Parish,  2  Dana,  9 ;  Howes  v.  Barker,  3  Johns, 


720  COMPENSATION    AND    DAMAGES.  §§  5  ID,   51  I. 

§  510.  Where  rights  of  third  persons  intervene. — The 
vendee  may  be  compelled  to  accept  partial  performance 
with  compensation,  or  to  abandon  the  contract,  for  the 
reason  that  a  specific  performance  would  injuriously  affect 
the  interests  of  other  persons  in  the  land.  A  lot  having 
been  purchased  under  an  oral  agreement,  the  purchase 
money  paid,  possession  taken,  and  a  substantial  building 
erected  by  the  vendee,  the  vendor  discovered  an  error  in 
the  front  boundary  which  took  in  ten  feet  of  the  street, 
and  affected  injuriously  the  rights  of  other  parties  who  had 
in  good  faith  purchased  lots  on  the  street  and  erected 
buildings  thereon.  The  court  considering  that,  although 
those  rights  were  subsequent  in  time,  and  therefore  sub- 
ordinate to  those  of  the  vendee,  yet  that  they  furnished 
equitable  considerations  to  be  regarded  in  adjudicating 
upon  the  rights  between  the  parties  to  the  suit,  held  that 
specific  performance  must  be  refused  unless  the  vendee 
would  accept  a  conveyance  with  boundaries  conforming  to 
the  line  of  the  street,  with  compensation  for  the  land  cut 
off  by  that  line,  and  for  the  damages  occasioned  by  the 
necessity  of  removing  his  building  from  the  limits  of  the 
street.' 

§  511.  Refusal  of  zvife  to  unite  in  conveyance. — As  a 
rule,  where  a  person  contracts  for  the  purchase  of  real  es- 

506;  Weaver  v.  Carter,  10  Leigh,  37;  Marvin  v.  Bennett,  8  Paige  Ch.,  312; 
Tvvyford  v.  Wareup,  Finch,  310  ;  Hill  v.  Buckley,  17  Yes.,  394;  Anon,  2  Free- 
man, 106.  In  Stebbins  v.  Eddy,  supra.  Story,  J.,  said  :  "  It  seems  to  me  that 
there  is  much  good  sense  in  holding  that  the  words  '  more  or  less,'  or  other 
equivalent  words,  used  in  contracts  or  conveyances  of  this  sort,  should  be 
construed  to  qualify  the  representation  of  quantity  in  such  a  manner  that,  if 
made  in  good  faith,  neither  party  should  be  entitled  to  any  relief  on  account  of 
a  deficiency  or  surplus.  Nor  am  I  prepared  to  admit  that  the  fact  that  the  sale 
is  not  in  gross,  but  for  a  specific  sum  by  the  acre,  ought  necessarily  to  create  a 
difference  in  the  application  of  the  principle.  I  do  not  say  that  cases  may  not 
occur  of  such  extreme  deficiency  as  to  call  for  relief ;  but  they  m.ust  be  such  as 
would  naturally  raise  the  presumption  of  fraud,  imposition,  or  mistake,  in  the 
very  essence  of  the  contract.  Where  the  sale  is  fair,  and  the  parties  are  equally 
innocent,  and  the  quantity  is  sold  by  estimation  and  not  by  measurement,  there 
is  little  if  any  hardship,  and  much  convenience,  in  holding  to  the  rule  caveat 
emptor." 

'  Curran  v.  Holyoke  Water  Power  Co.,  116  Mass.,  90.  A  decree  for  even  a 
partial  performance  may  be  refused  on  the  ground  that  it  would  injuriously  af- 
fect third  persons.     See  ante,  §  205. 


§  511-  REFUSAL  OF  WIFE  TO  UNITE.  721 

tate,  supposing  that  the  vendor  can  give  him  a  clear  title, 
and  the  wife  of  the  vendor  refuses  to  join  her  husband  in 
the  conveyance,  the  vendee  may,  at  his  option,  decline  to 
take  a  deed  executed  by  the  husband  alone,  and  bring  an 
action  against  him  for  breach  of  covenant ;  or  the  vendee 
may  accept  the  deed  as  part  performance,  and  retain  so  much 
of  the  purchase  money  as  shall  be  proportionate  to  the 
outstanding  contingent  interest  of  the  wife/  If  the  pur- 
chaser, when  he  enters  into  the  contract,  knows  that  the 
vendor  has  a  wife,  he  of  course  takes  the  chances  of  the 
wife's  refusal  to  release  her  right  of  dower,  and,  in  the  latter 
event,  if  he  insists  on  performance,  he  cannot  justly  claim, 
and  will  not  be  entitled  to,  anything  more  than  a  convey- 
ance of  the  husband's  estate.  The  rule  is  the  same,  w^here 
the  husband  has  only  a  life  interest  in  possession,  and  his 
wife  an  interest  in  remainder."  In  Pennsylvania,  specific 
performance  of  a  contract  to  sell  real  estate,  will  not  be  de- 
creed against  a  vendor  who  is  a  married  man  and  whose 
wife  refuses  to  join  in  the  conveyance,  unless  the  vendee  is 
willing  to  pay  the  full  amount  of  purchase  money,  and 
accept  the  deed  of  the  vendor  without  his  wife  joining.'    In 

'  Wingate  v.  Hamilton,  7  Ind.,  73 ;  Zebley  v.  Sears,  38  Iowa,  507.  See  Watts 
V.  Kinney,  3  Leigh,  293;  Yost  v.  De  Vault,  9  Iowa,  60;  Richmond  v.  Robinson, 
12  Mich.,  193  ;  Weller  v.  Weyant,  2  Grant  Cas.,  103.  In  Indiana  dower  at  com- 
mon law  is  abolished,  and  an  inchoate  right  to  one-third  of  the  realty  in  fee 
simple  substituted  ;  and  where  the  wife  does  not  join  with  her  husband  in  a  deed 
of  his  land,  there  will  be  an  abatement  from  the  contract  price  of  the  ascertained 
value  of  the  wife's  inchoate  interest.  Martin  v.  Merritt,  57  Ind.,  34.  Although 
a  bond  to  compel  the  wife  to  convey  at  a  future  time  would  be  void,  yet  a  bond 
executed  by  the  husband  alone  in  the  life-time  of  his  wife  conditioned  that  he 
would  convey  with  a  perfect  title  at  a  future  time,  would  be  binding  on  him,  and, 
upon  a  breach  of  it,  damages  might  be  recovered  against  him  by  suit  upon  the 
bond.     Brewer  v.  Wall,  23  Texas,  585  ;  Allison  v.  Shilling,  27  lb.,  450. 

'^  Greenaway  v.  Adams,  12  Ves.,  395  ;  Castle  v.  Wilkinson,  L.  R.  5,  Ch.  534; 
Barnes  v.  Wood,  L.  R.  8,  Eq.  424 ;  Clark  v.  Reins,  12  Gratt.,  98  ;  a7ite,  §  506. 
But  see  Barker  v.  Cox,  L.  R.  4,  Ch.  D.,  464.  Where  land  was  devised  subject  to  the 
support  and  maintenance  of  the  widow,  it  was  held  that  the  language  did  not 
create  a  trust,  but  an  incumbrance,  and  that  a  purchaser  from  the  devisee  was 
entitled  to  a  conveyance  of  such  title  as  he  had.  Downer  v.  Church,  44  N.  Y., 
647. 

^  Clarke  v.  Seirer,  7  Watts,  107  ;  Riesz's  Appeal,  23  Pa.  St.,  485  ;  Burke's  Ap- 
peal, 75  lb.,  141.  In  Riesz's  Appeal,  supra,  the  court,  per  Sharswood,  J.,  said  : 
"  The  same  sound  policy  which  forbids  a  decree  for  the  execution  of  a  deed  by 
the  husband  to  be  enforced  by  his  imprisonment  if  he  cannot  obey,  prevents  any 
decree  looking  to  compensation,  abatement,  or  indemnity.  The  case  does  not 
46 


72  2  COMPENSATION  AND  DAMAGES.         §  5II« 

New  Jersey,  it  has  been  held  that  the  court  will  not  order 
a  defendant  to  procure  a  conveyance  or  release  by  his  wife, 
or  to  furnish  indemnity  against  her  right  of  dower,  except 
in  cases  of  clear  fraud.'  In  such  case,  if  the  vendee  is  not 
willing  to  pay  the  full  amount  of  purchase  money  and  accept 
a  deed  from  the  husband  alone,  a  decree  for  specific  per- 
formance will  be  refused,  and  the  vendee  left  to  his  remedy 
at  law."*    In  a  suit  for  the  specific  performance  of  a  contract 

fall  within  the  principle  of  those  decisions  where  the  vendor  who  cannot  make 
title  to  all  he  has  contracted  to  convey  is  held  to  be  not  thereby  relieved  from 
specific  performance  as  far  as  in  his  power,  but  shall  be  compelled  to  execute 
his  contract  with  a  reasonable  abatement  in  the  price.  The  right  of  dower  of 
the  widow  is  of  such  a  contingent  nature,  depending,  as  it  does,  as  well  upon 
her  surviving  her  husband,  as  on  her  continuance  in  life  after  his  death,  that  no 
abatement  in  the  price  can  be  made  which  will  be  just  to  both  parties,  without 
in  effect  making  a  new  contract  for  them  ;  a  contract  which,  perhaps  in  the  first 
instance,  neither  party  would  have  come  into,  certainly  not  the  vendor.  Receipt 
of  the  purchase  money  in  full  may  have  been  the  main  object  of  the  sale,  to 
enable  him  to  pay  debts,  or  carry  out  other  plans.  If  he  is  to  be  subjected  to 
serious  pecuniary  loss  by  his  wife's  refusal  to  join,  it  will  operate  almost  as  power- 
fully as  the  peril  of  imprisonment,  as  a  moral  coercion  and  compulsion  upon  her 
to  yield  her  consent,  instead  of  that  free  will  and  accord  which  the  law  jealously 
requires  her  to  declare  by  an  acknowledgment  upon  an  examination  before  a 
n~.agistrate  separate  and  apart  from  her  husband.  The  learned  master,  to  whom 
it  was  referred  to  report  what  amount  of  the  purchase  money  should  be  retained 
by  the  vendee  upon  mortgage,  as  a  compensation  for  him  for  any  claim  the  wife 
might  thereafter  make  agamst  the  premises  for  dower,  reported  that,  in  his 
opinion,  not  less  than  forty  per  cent,  of  the  price  should  be  left  in  his  hands  for 
that  purpose ;  a  result  no  doubt  just  as  to  him.  But  how  as  to  the  vendor,  who 
was  personally  in  no  default  }  No  stronger  argument  could  be  adduced  to  show 
the  impolicy  of  making  any  decree."  The  only  portion  of  the  foregoing  reasons 
assigned  by  the  learned  judge  for  denying  compensation  to  the  purchaser,  under 
the  circumstances  supposed,  entitled  to  consideration,  is  the  presumed  danger 
of  coercion  to  the  wife  ;  and  that  seems  more  imaginary  than  real.  Certainly, 
if  the  vendor  has  undertaken  to  give  his  vendee  an  unincumbered  title,  and  is 
unable  to  do  it  in  consequence  of  the  refusal  of  his  wife  to  join  in  the  convey- 
ance, equity  and  good  conscience  require  that  he  should  make  up  the  deficiency 
by  compensating  or  indemnifying  the  vendee,  who,  without  his  own  fault,  must 
lose  his  entire  bargain  or  accept  a  partial  performance.  Whatever  may  be  the 
private  motive  of  the  vendor  in  selling,  or  his  disappointment  in  not  obtaining 
the  whole  purchase  money,  he  cannot  be  justified  in  evading  his  just  obliga- 
tions to  an  innocent  vendee.  See  remarks  of  Gordon,  J.,  in  Burk  v.  Serrill,  80 
Pa.  St.,  413,  confirmatory  of  the  ground  taken  by  Sharswood,  J.,  supra. 

•  Hawralty  v.  Warren,  18  N.  J.  Eq.,  124. 

-  Reilly  v.  Smith,  25  N.J.  Eq.,  158.  But  see  Peeler  v.  Le\7,  26  lb.,  330.  A., 
holding  the  title  to  real  estate,  in  trust  for  his  wife,  by  her  direction  sold  the  same 
to  B.,  who  had  no  knowledge  of  the  wife's  interest  therein.  Part  of  the  purchase 
money  was  paid  down,  pursuant  to  the  contract,  and  the  balance  afterward  ten- 
dered and  a  conveyance  demanded,  which  A.  refused  on  the  ground  that  his 
wife  declined  to  give  her  consent  thereto,  or  to  unite  in  its  execution.  It  was 
held  that  as  soon  as  A.  sold  the  land  to  B.,  at  his  wife's  request,  her  equity  was 
changed  from  the  land  to  the  purchase  money;  that  there  was  therefore  in  the 
case  no  question  of  "  purchaser  without  notice,"  or  of  "  estoppel,"  or  of  the  power 


§511.  REFUSAL    OF    WIFE    TO    UNITE.  723 

for  the  exchange  of  lands,  it  appeared  that  the  defendant's 
wife,  after  assenting  to  the  exchange,  subsequently  refused 
to  unite  with  her  husband  in  the  conveyance,  and  that  this 
refusal  was  owing  to  the  contrivance  and  fraud  of  the  hus- 
band. The  court  ordered  that  the  agreement  be  performed, 
and  that  it  be  referred  to  a  master  with  directions  to  settle 
the  conveyances,  and  if  the  wife  of  the  defendant  refused 
to  join  her  husband  in  a  deed,  then  to  direct  the  conveyances 
to  be  so  made  between  the  parties,  that  the  complainant 
might  hold  in  the  land  which  he  conveyed  security  against 
any  future  claim  to  be  set  up  by  the  defendant's  wife.'  With 
respect  to  the*  mode  of  compensation,  instead  of  an  abate- 
ment from  the  purchase  money,  an  indemnity  may  be  given 
against  the  risk,  a  portion  of  the  purchase  money  being 
kept  in  court,  or  retained  by  the  vendee  secured  by  a  mort- 
gage on  the  land.  In  one  case  Lord  Eldon  said  that  the 
proper  compensation  was  indemnity,  by  which  the  loss,  if 
it  should  happen,  would  be  made  good  ;  and  if  it  did  not 
happen,  there  was  no  occasion  for  compensation.  It  was 
accordingly  referred  to  a  master  to  settle  such  security  as, 
under  all  the  circumstances  of  the  title,  should  appear  just 
and  reasonable ;  and,  the  case  having  been  reargued,  the 
decree  was  affirmed.'  In  a  suit  for  the  specific  perform- 
ance of  a  bond  given  by  the  husband  alone  for  the  convey- 
ance of  land,  it  was  decreed  that  if  the  wife  did  not  join  in 
the  deed,  one-third  of  the  purchase  money  should  be  re- 
tained by  the  clerk,  with  whom  the  money  had  been  de- 
posited, for  the  wife's  dower  interest.  Held  error.  The 
appellate   court   said:  "There   is  no   more  warrant  in  the 

of  a  court  of  equity  to  decree  against  a  husband  a  conveyance  of  the  estate  ot 
his  wife ;  but  that  as  the  sale  was  made  by  A.  in  the  legitimate  exercise  of  his 
powers  as  trustee,  B.  was  entitled  to  specific  performance  notwithstanding  the 
objection  of  A.'s  wife.     Rostetter  v.  Grant,  18  Ohio  St.,  126. 

-  Young  V.  Paul,  2  Stockt.  Ch.,  401. 

-  Milligan  v.  Cooke,  16  Ves.,  i.  Where  the  wife  does  not  join  in  the  deed,  or 
otherwise  release  her  dower,  the  measure  of  damage  is  the  difference,  if  there  be 
any,  between  the  contract  price  and  the  proved  value  of  the  property  at  the  time 
of  the  breach.  Brinckerhoff  v.  Phelps,  43  Barb.,  469 ;  Barb  v.  Cole,  28  N.  Y., 
261 ;  Pumpelly  v.  Phelps,  40  lb.,  59 ;  Heimburg  v.  Ismay,  35  N.  Y.  Supr.  Ct.,  35. 


724  COMPENSATION    AND    DAMAGES.  §   5II. 

record  for  retaining  the  exact  number  of  dollars  and  cents 
named  than  there  is  for  any  other  sum.  Under  such  cir- 
cumstances, we  have  concluded  to  remand  the  cause  with 
directions,  if  the  parties  shall  so  desire,  to  take  testimony 
as  to  the  value  of  the  wife's  interest  in  the  land,  either  by 
a  master  or  otherwise ;  and,  in  the  light  of  such  testimony, 
the  court  below  will  make  the  proper  order  as  to  the 
money,  so  as  to  protect  the  rights  of  the  respective  liti- 
gants.'" The  amount  to  be  deducted  is  the  Vtilue  of  the 
wife's  right  at  the  time  of  the  conveyance,  and  not  the  dif- 
ference between  the  market  value  of  the  whole  land  with 
her  release,  and  the  value  without  it.  The  rule  should  be 
the  same  as  if  the  conveyance  had  been  made  with  a  war- 
ranty against  the  right  of  dower,  and  the  existence  of  the 
right  had  afterward  been  discovered,  and  an  action  had 
been  brought  to  recover  damages  for  a  breach  of  the  cove- 
nant."  Where  the  amount  withheld  as  an  abatement  be- 
cause of  the  failure  of  the  wife  to  execute  the  deed,  was 
equal  to  the  full  sum  to  which  she  would  have  been  en- 
titled if  her  husband  had  been  dead,  it  was  held  error ;  that 
there  should  have  been  an  inquiry  as  to  the  respective  ages 
of  the  husband  and  wife,  and  the  proper  table  resorted  to 
to  determine  w^hat  amount  ought  to  be  abated.'  If  the 
vendor,  after  entering  into  the  contract  of  sale,  dies,  and 
his  widow  occupies  and  cultivates  a  portion  of  the  land  as- 
signed her  as  dower,  the  vendee  ought  not  to  be  allowed  a 
gross  sum  as  the  presumed  value  of  her  present  interest  in 
the  premises,  but  be  permitted  to  retain  so  much  of  the 


'  Troutman  v.  Gowing,  16  Iowa,  415. 

'  Davis  V.  Parker,  14  Allen,  94.  "  The  proper  rule  for  computing  the  present 
value  of  the  wife's  contingent  right  of  dower  during  the  life  of  the  husband  is  to 
ascertain  the  present  value  of  an  annuity  for  her  life  equal  to  the  interest  in  the 
third  of  the  proceeds  of  the  estate  to  which  her  contingent  right  of  dower  at- 
taches, and  then  to  deduct  from  the  present  value  ot  the  annuity  for  her  life,  the 
value  of  a  similar  annuity  depending  upon  the  joint  lives  of  herself  and  her  hus- 
band ;  and  the  difference  between  these  two  sums  will  be  the  present  value  of 
her  contingent  right  of  dower."  Walworth,  Ch.,  in  Jackson  v.  Edwards,  7 
Paige  Ch.,  408. 

^  Hazelrig  v.  Hutson,  18  Ind.,  481. 


§  5^2.  LIABILITY    OF    SUBSEQUENT    PURCHASER.  725 

purchase  money  as  may  be  equal  to  one-third  the  value  of 
the  land  at  the  date  of  the  contract,  upon  his  giving  secu- 
rity by  a  lien  on  the  land  for  its  subsequent  payment  with- 
out interest.'  Where  a  married  woman  enters  into  a  cove- 
nant to  convey  real  estate  owned  by  her  in  her  own  right, 
which  she  afterward  refuses  to  do,  the  aid  of  a  court  of 
equity  may  be  invoked  to  compel  money  advanced  on  the 
purchase  price,  and  the  value  of  permanent  improvements 
made  by  the  vendee  on  the  premises,  less  the  value  of  the 
use  of  such  premises,  to  be  refunded." 

§512.  Liability  of  subsequent  pm^chaser.  —  It  is  upon 
the  principle  of  the  transmission  by  the  contract  of  an  act- 
ual equitable  estate,  and  the  impressing  of  a  trust  upon  the 
legal  estate  for  the  benefit  of  the  vendee,  that  the  doctrine 
of  the  specific  performance  of  contracts  for  the  sale  and 
purchase  of  land  mainly  depends.'  A  purchaser,  who  has 
fulfilled  the  contract  on  his  part,  is  entitled  to  specific  per- 
formance against  one  who,  with  knowledge  of  his  equities, 
has  succeeded  to  the  interest  of  the  vendor.  So,  if  the 
owner  of  land,  after  entering  into  a  contract  of  sale, 
mortgages  the  land,  one  who  buys  the  land  at  the  fore- 
closure sale  takes  it  subject  to  the  equities  of  the  vendee 
in  possession."  For  it  is  a  familiar  doctrine,  that  a 
purchaser  from  a  trustee  with  notice  of  the  trust, 
stands  in  the  place  of  his  vendor,  and  is  as  much  a  trustee 
as  he  was  ; '  and  the  cesttii  que  trust  may  follow  the  trust 

'  Springle  v.  Shields,  17  Ala.,  295.  Chilton,  J. :  "The  rule  which  would  make 
it  unjust  to  the  parties  to  allow  a  sum  in  gross  to  be  paid  to  the  widow  in  lieu  of 
dower  in  the  land,  would  equally  seem  to  forbid  that  a  sum  in  gross,  estimated 
as  the  supposed  value  of  the  dower,  should  be  allowed  the  alienee  as  against  the 
estate  of  the  vendor The  uncertainty  of  such  a  rule,  and  the  impractica- 
bility of  attaining  by  its  application  the  justice  of  the  case,  incline  us  to  eschew 
it  whenever  it  can  be  done.  We  are  aware  that  cases  may  arise,  and  have 
arisen,  where  juries  are  compelled  to  go  into  such  estimates  to  ascertain  the 
damage  the  vendee  has  sustained  by  reason  of  such  incumbrances.  But  the 
case  at  bar  is  one  where  the  court  being  called  upon  to  exercise  its  extraordinary 
jurisdiction,  has  the  power  to  require  the  parties  to  do  justice,  and  to  adopt  a 
rule  which,  while  it  may  not  meet  the  entire  justice  of  the  case,  at  least  approxi- 
mates more  nearly  to  it  than  any  other  we  can  adopt." 

^  Frarey  v.  Wheeler,  4  Oregon,  190.     See  Farley  v.  Palmer,  20  Ohio  St.,  223. 

"  Haughwout  V.  Murphy,  22  N.  J.  Eq.,  531  ;  S.  C.  21  lb.,  118. 

*  Laverty  v.  Moore,  33  N.  Y.,  658.        *  Story  v.  Lord  Windsor,  2  Atk.,  630. 


726  COMPENSATION    AND    DAMAGES.  §  5  I  2. 

property  in  the  hands  of  the  purchaser,  or  may  resort 
to  the  purchase  money  as  a  substituted  fund.'  Therefore 
if  the  vendor  again  sells  the  property  of  which,  by  reason 
of  the  first  contract,  he  i^  only  seized  in  trust,  he  will  be 
considered  as  selling  it  for  the  benefit  of  the  person  for 
whom  by  the  first  contract  he  became  trustee."  Or  the 
second  purchaser,  if  he  have  notice,  at  the  time  of  the  pur- 
chase, of  the  previous  contract,  will  be  compelled  to  con- 
vey the  property  to  the  first  purchaser.'  If  the  transfer  is 
not  bona  fide,  but  intended  to  deprive  the  party,  entitled 
to  a  conveyance,  of  his  just  rights  by  an  attempt  to  put  the 
land  out  of  his  reach,  the  court  has  jurisdiction  on  the  ground 
of  fraud."  The  second  vendee,  in  order  to  hold  the  title 
against  the  contract  of  sale,  must  not  only  have  been  a  bona 
fide  purchaser  without  notice,  but  he  must  have  paid  the 
purchase  money.  That  securities  have  been  given  for  the 
payment,  is  not  sufficient  to  protect  him.  The  lien  of  the 
purchaser  under  the  prior  contract  would  be  a  sufficient  de- 
fence to  such  securities.'  In  England,  until  the  delivery  of 
the  deed,  and  the  payment  of  the  entire  consideration,  a 
bona  fide  purchaser  is  not  protected  as  against  the  estate  of 
the  equitable  owner  under  a  prior  contract,  even  though  he 
contracted  to  purchase,  accepted  his  deed,  and  paid  part  of 
the  purchase  money  in  good  faith  ;  his  only  remedy  being 
against  his  vendor  to  recover  back  what  he  has  paid  on  a 
consideration  which  has  failed.  In  this  country,  the  doc- 
trine has  been  sometimes  qualified  to  the  extent  of  enforc- 
ing the  prior  contract  on  condition  that  the  second  pur- 
chaser shall  be  indemnified  for  the  purchase  money  paid, 

'  Murray  v.  Ballou,  i  Johns  Ch.,  ^6;  McMorris  v.  Crawford,  15  Ala.,  271  ; 
Dickinson  v.  Any,  25  lb.,  424. 

'  2  Spence's  Eq.,  310. 

^  Hoagland  v.  Latourette,  i  Green  Ch.,  254;  Downing  v.  Risley,  2  McCarter, 
94;  Keegan  v.  Williams,  22  Iowa,  378;  Smoot  v.  Rea,  19  Md.,  398. 

*  Foss  V.  Haynes,  31  Me.,  81. 

'  Notice,  before  actual  payment  of  all  the  purchase  money,  although  it  be 
secured  and  the  conveyance  executed,  or  before  the  execution  of  the  conveyance 
notwithstanding  the  money,  is  paid,  is  equivalent  to  notice  before  the  contract. 
Hill  on  Trustees,  165. 


§5^2.  LIABILITY    OF    SUBSEQUENT    PURCHASER.  727 

and  also  for  permanent  improvements  made  on  the  land 
before  notice.  "  The  doctrine  of  the  English  courts  is  nec- 
essary to  give  effect  to  the  principle  that,  in  equity,  immedi- 
ately on  the  contract  to  purchase,  an  equitable  estate  arises  in 
the  vendee,  the  legal  estate  remaining  in  the  vendor  for  his 
benefit.  Qualified  by  the  obligation  to  make  compensation 
to  any  subsequent  bona  fide  purchaser  who  has  paid  only 
part  of  the  consideration  money,  for  all  disbursements  made 
before  notice,  the  rule  is  every  way  consonant  with  correct 

principles.      Such  indemnity  is  protection  pro  taiito 

The  rule  of  law  which  deprives  a  subsequent  purchaser  who 
has  contracted  and  accepted  a  conveyance  and  paid  part 
of  the  purchase  money  in  good  faith  of  the  fruits  of  his  pur- 
chase without  indemnity,  is  exceedingly  harsh,  and  often 
oppressive  in  its  application.  Mitigated  by  the  obligation 
to  make  indemnity  for  payments  and  expenditures  before 
actual  notice,  its  operation  is  nevertheless  frequently  inequi- 
table. A  party  who  asks  the  enforcement  of  a  rule  of  this 
natui-e  against  another  who  is  innocent  of  actual  fraud,  must 
seek  his  remedy  promptly.  He  may  lose  his  right  to  spe- 
cific relief  against  the  land  by  laches,  and  be  remitted  to 
the  unpaid  purchase  money  as  the  only  relief  which  will  be 
equitable.'"  Although  a  husband  may  make  a  gift  to  his 
wife,  or  a  settlement  upon  her,  without  the  intervention  of 
a  trustee,  and  equity  will  sustain  it  if  it  be  no  more  than  a 
reasonable  provision  for  her,  be  proportioned  to  his  circum- 
stances, and  not  injurious  to  his  creditors,  yet  it  is  not  cer- 
tain that  such  a  conveyance  would  be  sustained  against  a 
subsequent  bona  fide  purchaser  from  the  husband,  unless  it 
were  for  a  valuable  consideration.''  One  who  purchases  pen- 
dente lite,  is  bound  by  the  decree  which  may  be  made  against 
the  party  from  whom  he  takes  his  title  ;'  and  he  need  not 

1  Dupue,  J.,  in  Haughwout  v.  Murphy,  supra.  Where  the  owner  of  land  has 
entered  into  a  contract  to  sell  the  same  land  to  a  third  person,  the  latter  must 
be  made  a  party  defendant  in  a  suit  for  the  specific  performance  of  the  original 
contract.     Fuilerton  v.  McCurdy,  4  Lans.,  132. 

2  Coates  V.  Gerlach,  44  Pa.  St.,  43. 

^  Sorrell  v.  Carpenter,  2  P.  Wms.,  482  ;  Garth  v.  Ward,  2  Atk.,  175  ;  Gaskell 
V.  Durdin,  2  B.  &  B,,  169;  Masson's  Appeal,  70  Pa.  St.,  27. 


728  COMPENSATION    AND    DAMAGES.  §5^2. 

be  made  a  party  to  the  suit,  in  order  to  be  bound."  Before 
it  was  provided  by  statute  tliat  notice  of  the  pendency  of 
the  suit  must  be  filed  in  order  to  charge  a  subsequent  pur- 
chaser from  the  defendant  with  notice  of  the  litigation,  a 
subpoena  served,  and  bill  filed,  were  necessary  before  the 
suit  was  regarded  as  commenced  so  as  to  make  its  pendency 
constructive  notice  to  persons  deriving  title  from  the  par- 
ties, and  to  give  the  decree  a  conclusive  effect  against  such 
persons.'  Where  the  vendor  sells  the  land  to  a  third  per- 
son who  has  knowledge  of  the  prior  contract  of  sale,  and, 
pending  a  suit  by  the  original  purchaser  against  his  vendor 
and  the  subsequent  grantee  for  specific  performance,  the 
latter  conveys  the  land  to  another,  the  complainant  will 
be  entitled  to  a  decree  against  such  other  for  the  purchase 
money  paid  on  the  original  contract/  So,  the  vendee  may, 
as  against  a  third  person  buying  either  with  or  without 
notice,  waive  his  claim  to  the  land,  and  take  the  money 
paid  instead.'  Where  a  party  having  a  contract  for  the 
purchase  of  real  estate,  afterward  agrees  to  sell  the  same  to 
a  third  person  whom  he  puts  in  possession,  and  the  original 
vendor  gives  such  third  person  a  deed  of  the  property  be- 
fore he  has  paid  for  it  in  full,  and  the  latter  is  insolvent, 
the  first  purchaser  may  compel  his  vendee  to  reconvey  the 
property  to  him.'  If  the  vendee  obtains  from  a  third  per- 
son an  advance  of  money  to  meet  his  payments  on  the  con- 
tract of  purchase,  under  an  agreement  to  give  a  mortgage 
on  the  land  to  secure  repayment,  his  interest  in  the  prop- 
erty will  be  holden  to  the  same  extent  as  if  the  mortgage 
had  been  given  pursuant  to  the  agreement.* 


'  Metcalfe  v.  Pulvertorft,  2  V.  &  B.,  205  ;  Snowman  v.  Harford,  57  Me.,  397. 

^  2  Mad,  Ch.  Pr.,  325  ;  Hayden  v.  Bucklin,  9  Paige  Ch.,  512. 

2  Oliver  v.  Croswell,  42  111.,  41. 

■*  Dustin  V.  Newcomer,  8  Ohio,  49;  Haughwout  v.  Murphy,  22  N.  J.  Eq.,  531. 

'  Bud  V.  Hall,  30  Mich.,  374.  Where  the  vendor  of  land  holds  no  obligations 
or  securities  of  a  negotiable  character,  his  selling  the  property  to  a  third  person 
upon  default  of  the  purchaser  to  fulfil,  is  a  sufficient  declaration  of  forfeiture. 
"Warren  v.  Richmond,  58  III,  52  ;  Little  v.  Thurston,  58  Me.,  86. 

'  Cole  V.  Cole,  41  Md.,  301.  In  this  case,  the  agreement  to  give  the  mortgage 
was  verbal.     A  note  was  given  by  the  vendee  to  stand  as  evidence   of  the  ad- 


§   513-  WHERE    THE    INTEREST    IS    JOINT.  729 

§  5 1 3.  Where  the  interest  is  joint. — If  a  purchase  be  made 
by  parties  interested  in  it  by  mutual  agreement,  neither  can 
rightfully  exclude  the  other  from  what  was  designed  to  be 
for  the  common  benefit ;  and  if  one  of  them  seeks,  in  vio- 
lation of  his  good  faith  to  his  co-tenant,  a  private  benefit  to 
himself  in  matters  appertaining  to  the  common  right,  he  will 
be  deemed  a  trustee  for  the  benefit  of  both/  Thus  :  where 
two  individuals  enter  into  an  agreement  for  the  purchase 
of  property  in  moieties,  neither  of  them  can  lawfully  secure 
any  private  or  personal  benefit  to  himself.  But  any  advan- 
tage obtained  in  paying  off  incumbrances  is  deemed  in 
equity  for  their  mutual  benefit  and  on  a  mutual  trust' 
The  contract  must,  however,  of  course,  be  valid  and  bind- 
ing, and  of  such  a  character  as  to  be  capable  of  being  en- 
forced. The  purchasers  of  real  estate  sold  by  execiitors, 
relinquished  their  right  in  the  same  in  favor  of  D.,  the  ex- 
ecutors agreeing  that  D.  should  be  substituted  as  pur- 
chaser, and  reporting  him  as  such  to  the  orphans'  court, 
which  ratified  the  sale.  G.  was  in  fact  jointly  interested 
with  D.  in  the  purchase  to  the  extent  of  an  undivided  half 

vance  until  a  mortgage  was  executed.  It  was  held  that  the  giving  of  the  note 
did  not  destroy  the  right  of  the  complainant  to  have  the  mortgage  executed,  and 
that  the  statute  of  frauds,  if  it  had  been  proved,  would  have  been  no  defence  ; 
the  refusal  to  give  a  mortgage,  being  a  fraud. 

'  Flagg  V.  Mann,  2  Sumner,  486. 

"  Carter  v.  Home,  i  Eq.  Abr.  7,  PI.  13  ;  Fawcett  v.  Whitehouse,  i  R.  &  M., 
132  ;  Burton  v.  Wookey,  6  Mad.,  367.  "  When  two  devisees  are  in  possession 
under  an  imperfect  title  derived  from  their  common  ancestor  (the  case  then  be- 
fore the  court),  there  would  seem  naturally  and  equitably  to  arise  an  obligation 
between  them,  resulting  from  their  joint  claims  and  community  of  interest, 
that  one  of  them  should  not  affect  the  claim  to  the  prejudice  of  the  other.  It 
is  not  consistent  with  good  faith,  nor  with  duty,  which  the  connection  of  the 
parties  as  the  claimants  of  a  common  subject  created,  that  one  of  them  should 
be  able,  without  the  consent  of  the  other,  to  buy  in  an  outstanding  title,  and 
appropriate  the  whole  subject  to  himself,  and  thus  undermine  and  oust  his  com- 
panion. It  would  be  repugnant  to  a  sense  of  refined  and  accurate  justice.  It 
would  be  immoral,  because  it  would  be  against  the  reciprocal  obligation  to  do 
nothing  to  the  prejudice  of  each  other's  equal  claim  which  the  relationship  of 
the  parties  as  joint  devisees  created.  Community  of  interest  produces  a  com- 
munity of  duty ;  and  there  is  no  real  difference,  on  the  ground  of  policy  and 
justice,  whether  one  co-tenant  buys  up  an  outstanding  incumbrance  or  an  ad- 
verse title,  to  disseize  and  expel  his  co-tenant.  It  cannot  be  tolerated  when  ap- 
plied to  a  common  subject  in  which  the  parties  had  equal  concern,  and  which 
created  a  moral  obligation  to  deal  candidly  and  benevolently  with  each  other, 
and  to  create  no  harm  to  their  joint  interest."  Kent,  Ch.,  in  Home  v.  Fonda, 
5  Johns  Ch.,  388,  407. 


730  COMPENSATION    AND    DAMAGES.  §  514- 

of  the  property,  under  a  verbal  agreement  between  them 
which  was  unknown  to  the  executors.  D.  and  G.  having 
taken  possession  of  the  property  and  made  payment,  the 
larger  portion  of  which  was  advanced  by  G.,  D.  died.  In 
a  suit  by  G.  to  restrain  the  executors  from  conveying  the 
land  to  the  heirs  of  D.,  the  heirs  from  accepting  a  convey- 
ance, the  administratrix  of  D.  from  collecting  the  rents, 
praying  for  the  appointment  of  a  receiver,  and  that  G. 
mifrht  be  declared  to  be  the  owner  of  an  undivided  half  of 
the  land  upon  his  paying  his  share  of  the  balance  of  the 
purchase  money,  it  was  held  that  specific  performance  of 
the  agreement  between  D.  and  G.  could  not  be  enforced, 
and  that  G.  was  not  entitled  to  relief  on  the  ground  of  a 
resulting  or  constructive  trust ;  but  that  he  would  be 
awarded,  as  compensation,  a  return  of  the  money  paid  and 
expended  by  him  in  the  purchase  of  the  property,  with  in- 
terest thereon,  and  be  deemed  a  general  creditor  against 
the  assets  of  the  estate  of  D.  for  the  amount  ultimately 
found  to  be  due  him.' 

§  514.  The  giving  of  damages. — It  is  highly  important 
that  a  court  of  equity  should  have  jurisdiction  to  award 
damages,  without  compelling  the  parties  to  resort  to  an- 
other forum,  whenever  the  doing  of  complete  justice  re- 
quires their  payment ;  and  such  a  practice  is  alone  conso- 
nant with  the  doctrine  of  equity,  that,  when  the  court  has 
once  acquired  jurisdiction,  it  will  retain  it  in  order  to  sat- 
isfy all  the  just  requirements  of  the  case  between  the  par- 
ties in  respect  to  the  subject  matter.  It  seems,  however, 
that  though  at  an  early  date  equity  recognized  jurisdiction 
as  to  damages  when  they  were  incident  to  the  case  already 
before  the  court,'  subsequently  disclaimed  it,  holding  that 
there  was  a  wide  distinction  between  compensation  and 
damages,  the  extent  and  measure  of  which  were  different.' 

'  Green  v.  Drummond,  31  Md.,  71. 

'  Cleaton  v.  Gower,  Finch,  164;  City  of  London  v.  Nash,  3  Atk.,  512  ;  Den- 
ton V.  Stewart,  i  Cox,  258;  Greenaway  v.  Adams,  12  Yes.,  401.  And  see 
Cud  V,  Rutter,  i  P.  Wms  ,  570. 

3  Gwillim  V.  Stone,  14  Ves.,  128;  Todd  v.  Gee,  17  lb.,  273  ;  Sainsbury  v. 
Jones,  5  My.  &  Cr.,  i. 


§   5^5-  DAMAGES    AWARDED    AS    ANCILLARY.  73 1 

But  in  more  modern  times,  the  constant  tendency  and  in- 
clination of  the  court  have  been  to  take  a  more  liberal 
'view,  and  to  reassert  its  original  position  on  the  subject 
with  increased  latitude.' 

§  5 1 5.  Damages  awarded  as  ancillary  to  other  relief. — 
As  a  general  rule,  compensation  is  regarded  as  an  incident 
only,  unless  there  is  a  special  equity  authorizing  the  court 
to  give  relief  ;  and  jurisdiction  will  not  be  exercised  for 
the  sole  purpose  of  assessing  damages  for  a  breach  of  con- 
tract.' Where,  for  instance,  a  verbal  agreement,  being 
void  under  the  statute  of  frauds,  is  incapable  of  being  spe- 
cifically enforced,  the  bill  will  not  be  retained  to  award 
damages  to  the  defendant  for  the  value  of  services  ren- 
dered on  the  faith  of  the  agreement,  and  for  money  ad- 
vanced for  the  protection  and  management  of  the  prop- 
erty.'    If  the  jurisdiction  attaches,  except  as  ancillary  to  a 

'  Such  a  jurisdiction  ought  certainly  to  be  exercised  where  the  remedy  at  law 
is  inadequate,  and  irreparable  injury  would  otherwise  be  sustained.  See,  in  af- 
firmance of  the  jurisdiction  in  this  country,  Pratt  v.  Law,  9  Cranch,  492,  494  ; 
Phillips  V.  Thompson,  i  Johns  Ch.,  150  ;  Parkhurst  v.  Van  Cortlandt,  lb.,  286; 
Woodcock  V.  Bennett,  i  Cowen,  711  ;  Andrews  v.  Brown,  3  Cush.,  130.  Contra, 
Hatch  V.  Cobb,  4  Johns  Ch.,  560;  Kempshall  v.  Stone,  5  lb.,  195. 

''■  Newham  v.  May,  13  Price,  732  ;  Hatch  v.  Cobb,  sttpra  ;  Sims  v.  McEwen, 
27  Ala.,  184  ;  Harrison  v.  Deramus,  33  lb.,  463  ;  Morss  v.  Elmendorf,  11  Paige 
Ch..  277  ;  Richmond  v.  Dubuque  &  Sioux  City  R.R.  Co.,  33  Iowa,  422  ;  Doan 
V.  Mauzey,  33  Ala.,  227  ;  Carroll  v.  Wilson,  22  Ark.,  32  ;  Welsh  v.  Bayaud,  21 
N.  J.  Eq.,  186.  When,  in  a  suit  for  the  specific  performance  of  a  contract  to 
convey  real  estate,  it  is  conceded  that  the  defendant  never  had  the  title,  and  is 
not  able  to  fulfil,  the  court  cannot,  by  a  compulsory  reference,  deprive  him  of 
the  right  to  have  the  question  of  damages  tried  by  a  jury,  but  should  send  the 
case  to  the  circuit  for  trial.     Stevenson  v.  Buxton,  37  Barb.,  13. 

'  Horn  V.  Luddington,  32  Wis.,  73.  Where  after  real  estate  had  been  con- 
veyed under  a  contract  of  sale,  securities  given  for  the  purchase  money,  and  a 
bill  filed  by  the  vendee  for  a  rescission  of  the  contract  on  the  ground  of  fraud, 
it  having  been  held  that  he  was  not  entitled  to  the  relief  prayed,  it  was  further 
held  that  the  damages  he  had  sustained  could  not  be  ascertained  by  the  court 
and  decreed  to  him  in  abatement  of  the  purchase  money.  Robertson  v.  Hogs- 
heads, 3  Leigh,  667.  "  I  take  it  a  bill  for  damages  only  will  not  lie  in  equity. 
The  court  could  only  ascertain  these  damages  by  sending  the  case  to  a  court  of 
law.  To  that  court,  therefore,  the  party  should  apply  instead  of  clogging  the 
litigation  by  a  suit  in  equity,  which  could  only  end  where  he  ought  to  have  be- 
gun. Would  it  be  just  (even  though  the  fraud  be  established),  that  the  defend- 
ants should  be  charged  with  the  costs  of  this  unnecessary  proceeding  ?  I  think 
not.  Had  an  issue  been  directed  and  found  for  the  plaintiff,  surely  the  plaintiff 
ought  to  be  charged  with  the  additional  costs  unnecessarily  incurred  by  going 
through  the  court  of  chancery  to  get  into  a  court  of  law  ;  since  he  might  at 
once  have  got  into  the  court  of  law  by  issuing  his  writ  for  the  deceit.  Whether 
the  statute  of  limitations  will  bar  an  action  at  law  which  the  appellant  may  now 


732  COMPENSATION    AND    DAMAGES.  §515* 

specific  performance,  or  to  some  other  relief,  "it  must  be 
under  very  special  circumstances  and  upon  peculiar  equi- 
ties, as,  for  instance,  in  cases  of  fraud,  or  in  cases  where  the 
party  has  disabled  himself  by  matters  ex  post  facto  from  a  spe- 
cific performance,  or  in  cases  where  there  is  no  adequate 
remedy  at  law.'"  Where  the  plaintiff  did  not  establish 
a  case  entitling  him  to  equitable  relief,  and,  if  the  bill  was 
dismissed,  the  plaintiff  would  be  remediless,  because  the 
statute  of  limitations  would  be  a  bar  to  a  new  action,  the 
cause  was  ordered  to  the  circuit  court  for  a  trial  as  to  the 
claim  for  damages."  So,  when  the  specific  performance  of 
a  parol  agreement  cannot  be  decreed  in  consequence  of  un- 
certainty in  its  terms,  or  of  the  statute  of  frauds  being  re- 
lied on,  the  court  will,  if  there  is  no  remedy  at  law,  or  it  is 
uncertain  or  embarrassed,  decree  compensation  to  the  ex- 
tent of  the  purchase  money  paid,  and  the  value  of  beneficial 
and  lasting  improvements."  If  a  court  of  equity  has  juris- 
diction of  the  subject  of  the  controversy,  jurisdiction  for 
compensation  or  damages  will  always  attach  where  it  is  an- 
cillary to  the  relief  prayed  for.*     This  was  held,  in  a  suit 

bring,  it  would  be  premature  to  say.  But,  though  this  inconvenience  should  fol- 
low, it  ought  not  to  lead  the  court  to  establish  a  precedent  sustaining  a  mere 
action  for  damages  in  equity.  Such  a  proceeding  has  been  questioned  even  in 
a  suit  for  specific  performance,  where  the  defendant,  after  the  bill  was  filed,  had 
disabled  himself  to  perform  ;  and  has  been  distinctly  reprobated  where  he  had 
so  disabled  himself  before  filing  the  bill,  and  the  plaintiff  knew  of  the  fact  be- 
fore he  commenced  the  suit."     Per  Tucker,  Prest. 

'  Story's  Eq.  Juris.,  Sec.  799  ;  Gupton  v.  Gupton,  47  Mo.,  37 ;  Peler  v.  Levy, 
26  N.  J.  Eq.,  360;  Izard  v.  Mays  Landing  Water  Power  Co.,  31  lb.,  511.  In 
Barlow  v.  Scott,  24  N.  Y.,  40,  the  complainant  prayed  for  specific  performance 
or  damages.  The  equitable  relief  was  denied.  Lott,  J.,  said  :  "  It  is,  however, 
insisted  by  the  defendant  that  it  was  erroneous  for  the  court  to  order  judgment 
in  favor  of  the  plaintiff  on  a  trial  of  the  issue  without  a  jury.  There  is  nothing 
to  show  that  the  action  was  so  tried  against  or  without  the  defendant's  consent. 
The  objection  does  not  appear  to  have  been  made  at  the  trial,  and,  if  it  was, 
should  have  been  stated  in  the  case  ;  and  not  appearing  there,  it  cannot  be  urged 
in  this  court  as  a  ground  for  reversing  the  judgment."  It  was  not  intimated 
what  would  have  been  proper  if  the  objection  had  been  taken  at  the  trial. 

*  Genet  v.  Howland,  45  Barb.,  560. 

2  White  &  Tudor's  Leading  Cas.  in  Eq.,  527  ;  65  Law  Lib.,  527.  It  has  been 
held  that  where  it  appears  from  the  contract  that  the  vendee,  by  paying  a  stipu- 
lated sum,  has  the  right  to  relieve  himself  from  the  purchase,  a  court  of  equity 
may  direct  the  stipulated  sum  to  be  paid  by  the  vendee  to  the  vendor,  although 
a  recovery  by  the  vendor  could  have  been  had  for  the  same  at  law.  Cathcart  v. 
Robinson,  5  Pet.,  263. 

"  Holland  v.  Anderson,  38  Mo.,  55  ;  Woodman  v.  Freeman,  25  Me.,  531 ;  Bell 
V.  Thompson,  34  Ala.,  633 ;  Prothero  v.  Phelps,  35  Eng.  L.  &  Eq.,  523. 


§5^5-  DAMAGES    AWARDED    AS    ANCILLARY.  ^23 

for  specific  performance  brought  by  the  vendor,  where  the 
answer  stated  a  willingness  of  the  vendee  to  fulfil  the  con- 
tract whenever  the  court  should  award  to  him  compensation 
for  the  damages  he  had  sustained  in  consequence  of  the  acts 
of  the  plaintiff  and  his  agents  in  interfering  with  the  ven- 
dee's possession  and  enjoyment  of  the  land,  which  was  de- 
creed/ Where  a  court  of  equity  has  jurisdiction,  but  the 
relief  prayed  for  cannot  for  some  reason  be  granted,  com- 
pensation in  damages  may  be  granted  in  lieu  thereof.  Thus, 
if  a  plaintiff  was  originally  entitled  to  the  specific  perform- 
ance of  a  contract  of  sale,  but  before  the  final  decree  it  be- 
comes impossible  for  the  defendant  to  execute  a  convey- 
ance, so  that  the  relief  prayed  for  in  the  bill  cannot  be 
decreed,  the  court  will  not  turn  the  plaintiff  over  to  seek 
his  damages  in  an  action  at  law,  but  wnll  proceed  to  decree 
him  compensation.'  A.  and  B.,  who  owned  adjoining  prem- 
ises, agreed  to  erect  a  party  wall.  B.  afterward  refusing 
to  do  his  share  of  the  work,  A.  constructed  the  entire  wall, 
and  filed  a  bill  to  restrain  B.  from  using  the  wall.  It  was 
thereupon  agreed  that  B.  might  proceed  with  his  building 
upon  giving  bonds  for  the  payment  of  such  an  amount  as 
should  be  adjudged  to  A.  It  was  held  that  as  the  court  no 
longer  had  power  to  decree  the  specific  relief  originally 
prayed  for,  as  a  necessary  consequence,  both  inherently  and 
by  virtue  of  the  agreement  between  the  parties,  it  might 
ascertain  and  award  compensation  in  damages.' 

'  Nagle  V.  Newton,  22  Gratt.,  814.  "We  think  the  doctrine  on  this  subject  is 
now  well  settled,  and  may  be  succinctly  stated  to  be  this  :  Where  the  court  of 
chancery  has  jurisdiction  of  the  case,  and  where  it  is  a  case  proper  for  specific 
performance,  it  may,  as  ancillary  to  specific  performance,  decree  compensation 
or  damages.  And  where  the  ascertainment  of  damages  is  essential  in  order  to 
do  complete  justice  between  the  parties  in  the  case  before  it,  the  court  ought  not 
to  send  the  parties  to  another  forum  to  litigate  their  rights  ;  but  should  refer  the 
matter  to  one  of  its  own  commissioners,  or  direct  an  issue  quantmn  daiiDiificattis 
to  be  tried  at  its  own  bar."     lb.,  per  Christian,  J. 

'  Masson's  Appeal,  70  Pa.  St.,  26.  The  assignee  of  a  title  bond  may  sue  in 
equity  for  specific  performance  and  pray  for  damages  in  case  specific  perform- 
ance be  found  impossible.  The  measure  of  damages  in  such  a  case  would  be 
the  amount  paid  on  the  purchase,  whether  paid  to  the  vendor,  or  to  other  per- 
sons with  his  assent  or  by  his  direction,  with  the  understanding,  express  or  im- 
plied, that  it  should  be  taken  as  part  of  the  consideration,  and  be  so  credited. 
Am.  Land  Co.  v.  Grady,  33  Ark.,  550. 

'  Hopkins  v.  Oilman,  22  Wis.,  476.    Where  a  person  agreed  to  build  a  house 


734  COMPENSATION    AND    DAMAGES.  §   5^6. 

§  516.  Where  the  suit  is  brought  solely  for  damages. — 
As  a  rule,  when  the  plaintiff  knew  at  the  time  of  bringing 
his  suit  that  the  contract  could  not  be  specifically  performed 
or  decreed,  the  bill  will  not  be  sustained  for  a  compensation 
in  damages.  It  is  then  reduced  to  the  case  of  a  bill  filed 
for  the  sole  purpose  of  assessing  damages  for  a  breach  of 
contract,  which  is  matter  strictly  of  legal,  and  not  of  equi- 
table jurisdiction.'  In  New  York,  under  the  existing  prac- 
tice by  which  the  former  distinction  between  legal  and  equi- 
table actions  has  been  abolished,  and  legal  and  equitable 
causes  of  action  and  remedies  made  capable  of  being  united 
and  administered  in  one  action,  the  old  rule  as  to  knowl- 
edge of  the  plaintiff  affecting  his  right  to  damages  in 
equity,  is  no  longer  regarded.  When  the  complainant  states 
facts  giving  an  equitable  cause  of  action,  and  also  a  legal 
cause  of  action,  arising  out  of  the  same  transaction,  the 
party  is  entitled  to  have  the  latter  tried,  if  necessary  to  ob- 
tain his  rights,  although  he  fails  to  show  a  right  to  equita- 
ble relief.  The  claim  of  damages  for  breach  of  contract 
"  must  be  tried  by  the  court  or  a  referee,  unless  some  ques- 


on  certain  land,  and  to  take  a  lease  of  the  land,  it  was  held  that  the  plaintiff 
might  enforce  the  contract  as  to  the  lease,  and  claim  damages  for  the  default  in 
not  building  the  house.  Soames  v.  Edge,  Johns,  669  ;  Mayor  of  London  v.  South- 
gate,  38  L.  J.  Ch.,  141,  See  Jervis  v.  Smith,  i  Hoffm.  Ch.,  470;  Oliver  v.  Cros- 
well,  42  111.,  41  ;  Smith  V.  Keliey,  56  Me.,  64;  Woodman  v.  Freeman,  25  lb.,  531  ; 
Rockwell  V.  Lawrence,  2  Halst.  Ch.,  190;  Bowie  v.  Stonestreet,  6  Md.,  418; 
Aday  v.  Echols,  18  Ala.,  353  ;  Johnson  v.  Glancy,  4  Blackf.,  94;  Nagle  v.  New- 
ton, 22  Gratt.,  814.  In  contracts  relating  to  personal  property,  the  court  may 
give  compensation  in  damages  where  the  performance  becomes  impossible,  as 
is  done  in  like  suits  for  the  specific  performance  of  contracts  relating  to  real 
property.  Tenney  v.  State  Bank,  20  Wis.,  152.  The  reasons  why  a  court  of 
equity  will  not  ordinarily  interfere  to  decree  a  specific  delivery  of  chattels  is,  that 
by  a  suit  at  law,  full  compensation  may  be  obtained  in  damages,  although  the 
thing  itself  cannot  be  specifically  obtained ;  there  being  no  reason  why  equity 
should  afford  aid  to  the  party  when  the  remedy  at  law  is  adequate.  The  rule  is 
illustrated  by  the  exceptions  to  it ;  and  these,  as  we  have  heretofore  seen,  always 
depend  upon  peculiar  circumstances,  as  where  the  thing  is  of  peculiar  value  or 
importance,  and  the  loss  of  it  cannot  be  compensated  in  damages,  or  where  some 
other  mgredient  of  jurisdiction  is  involved  in  the  transaction.  Scott  v.  Bilgerry, 
40  Miss.,  119.     See  ante,  %%  16,  17,  18. 

'  Hatch  v.  Cobb,  4  Johns  Ch.,  559;  Kempshall  v.  Stone,  5  lb.,  193;  Doan  v. 
Mauzey,  33  111.,  227  ;  Lewis  v.  Yale,  4  Fla.,  437  ;  Morss  v.  Elmendorf,  11  Paige 
Ch.,  277  ;  McQueen  v.  Chouteau,  20  Mo.,  222  ;  Barnett  v.  Mendenhall,  42  Iowa, 
296.  See  Smith  v.  Kellv,  56  Me.,  64;  Franz  v.  Orton,  75  111.,  100;  Henty  v. 
Schroder,  L.  R.  12,  Ch.  D.  666. 


§517-       SPECIFIC  PERFORMANCE  CANNOT  BE  DECREED.  735 

tions  of  fact  involved  are  ordered  by  the  court  to  be  tried 
by  a  jury.  Eitlier  party  has  a  right  to  a  jury,  if  the  ends 
of  justice  require  the  trial  of  both  ;  or  both  may  be  tried 
by  the  court  or  a  referee,  if  the  parties  so  desire.'" 

§  517.  In  case  specific  performance  cannot  be  decreed. — 
Where  the  defendant  deprives  himself  of  the  power  to  per- 
form the  contract  specifically  during  the  pendency  of  a  suit 
to  compel  such  performance,  a  court  of  equity  may  retain 
the  suit,  and  award  to  the  complainant  compensation  in 
damages,  to  prevent  a  multiplicity  of  suits.  And  such  a 
decree  will  be  proper  where  the  defendant  has  deprived 
himself  of  the  power  to  perform  the  contract  prior  to  the 
filing  of  the  bill,  but  without  the  knowledge  of  the  com- 
plainant ;  or  even  when  the  defendant  never  had  the  power 
to  perform,  if  the  complainant  filed  his  bill  in  good  faith, 
supposing,  when  he  brought  his  suit,  that  specific  perform- 
ance of  the  contract  could  be  obtained.'  "  The  rule  as- 
sumes, of  course,  a  sufficient  contract,  performance,  or  an 
offer  to  perform  by  the  plaintiff,  and  every  other  element 
requisite  on  his  part  to  the  cognizance  of  his  case  in 
chancery ;  and  that  the  special  relief  sought  is  defeated, 
not  by  any  defence  or  counter  equities,  but  simply  because 
an  order  therefor  would  be  fruitless  from  the  inability  of 
the  defendant  to  comply.  The  jurisdiction  is  fixed  by 
establishing  the  equitable  right  of  the  plaintiff".  Relief 
must  then  be  given  by  a  decree  in  the  alternative,  award- 
ing damages  unless  the  defendant  should  secure  the  spe- 
cific performance  sought.  In  many  cases  this  would  be  an 
effective  and  proper  course ;  inasmuch  as  the  defendant, 
although  not  having  himself  at  the  time  the  title  or  capac- 
ity requisite  for  such  performance,  might  be  able  to  pro- 
cure it  otherwise.     The  jurisdiction  is  not  lost  when  the 

'  Slernberger  v.  McGovern,  56  N.  Y.,  12,  per  Glover,  J. 

5  Morss  V.  Elmendorf,  supra  ;  Wiswall  v.  McGowan,  Hoffm.  Ch.,  125  ;  Wood- 
ward V.  Harris,  2  Barb.,  439;  Holland  v.  Anderson,  38  Mo.,  55  ;  Hamilton  v. 
Hamilton,  59  lb.,  232  ;  Woodcock  v.  Bennett,  i  Cowen,  71  ;  Hall  v,  Delaplaine, 
5  Wis.,  206;  Chartier  v.  Marshall,  56  N.  H.,  478. 


']2i^  COMPENSATION    AND    DAMAGES.  §   S^S. 

court,  instead  of  such  alternative  decree,  determines  to  pro- 
ceed directly  to  an  award  of  damages  or  compensation. 
The  peculiar  province  of  a  court  of  chancery  is  to  adapt  its 
remedies  to  the  circumstances  of  each  case  as  developed  by 
the  trial.  It  is  acting  within  that  province,  when  it  ad- 
ministers a  remedy  in  damages  merely  in  favor  of  a  plain- 
tiff who  fails  of  other  equitable  relief  to  which  he  is  entitled 
without  fault  on  his  part.  The  diversity  of  practice  in  this 
respect,  and  the  doubt  as  to  the  jurisdiction,  we  think  must 
have  arisen  less  from  the  nature  of  the  relief  to  be  afforded 
than  from  the  character  of  the  means  for  determining  the 
amount  of  compensation  to  be  rendered.'" 

§  518.  Under  English  statute. — In  England  the  court 
of  chancery,  until  recently,  had  no  powder  to  give  damages 
where,  although  the  case  was  of  a  nature  entitling  the 
plaintiff  to  bring  a  suit  for  specific  performance,  yet,  ow- 
ing to  the  conduct  of  the  defendant,  specific  performance 
had  become  impossible  ;  but  the  plaintiff  was  compelled  to 
resort  to  an  action  at  law.  Now,  however,  by  what  is 
known  as  Sir  Hugh  Cairns'  act,  it  is  provided  that  "in  all 
cases  in  which  the  court  of  chancery  has  jurisdiction  to  en- 
tertain an  application  for  an  injunction  against  a  breach  of 
any  covenant,  contract,  or  agreement,  or  against  the  com- 
mission or  continuance  of  any  wrongful  act,  or  for  the  spe- 
cific performance  of  any  covenant,  contract,  or  agreement, 
it  shall  be  lawful  for  the  same  court,  if  it  shall  think  fit,  to 
award  damages  to  the  party  injured,  either  in  addition  to, 
or  in  substitution  for,  such  injunction  or  specific  perform- 
ance, and  such  damages  may  be  assessed  in  such  manner 
as  the  court  shall  direct."'  Under  the  foregoing  act,  to 
entitle  the  plaintiff  to  damages,  either  in  lieu  of  specific 
performance,  wiiere,  for  some  special  reason,  the  court  de- 
clines to  decree  the  latter,  or  w^here  the  suit  is  brought  for 
the  sole  purpose  of  recovering  damages,  the  case  established 

'  Milkman  v.  Ordway,  106  Mass.,  232,  per  Wells,  J. 
'  21  and  22  Vict  Ch.  27,  Sec.  2. 


§5i8. 


UNDER  ENGLISH  STATUTE.  'J  T^'] 


by  the  plaintiff  must  be  of  a  character  over  which  equity 
has  jurisdiction,  although,  under  the  particular  circum- 
stances, the  contract  may  not  be  capable  of  being  specifi- 
cally enforced/  The  plaintiff  contracted  with  the  defendant 
for  a  lease  of  property  for  the  purpose,  as  the  defendant 
knew,  of  carrying  on  a  trade  which  the  plaintiff  was  about 
to  commence  ;  but,  in  consequence  of  the  defendant's  wil- 
ful refusal  to  fulfil  his  agreement,  the  plaintiff  could,  not 
commence  his  trade  for  fifteen  weeks.  In  addition  to  a 
decree  for  specific  performance,  two  hundred  and  fifty 
pounds  damages  were  awarded  to  the  plaintiff  for  his  loss 


'  Lewers  v.  Earl  of  Shaftesbury,  L.  R.  2,  Eq.  270 ;  Johnson  v.  Wyatt,  2  De  G. 
J.  &  S.,  18;  Middleton  v.  Greenwood,  lb.,  142.  In  Ferguson  v.  Wilson,  L.  R. 
2,  Ch.  ']'],  Turner,  L.  J.,  said  :  "  I  understand  the  act  to  mean  this.  There  was 
great  difficulty  in  cases  of  specific  performance,  and  also  in  cases  of  injunction, 
before  the  passing  of  that  act,  arising  under  this  state  of  circumstances.  There 
were  many  cases  where  a  court  of  equity  would  decline  to  grant  specific  per- 
formance, and  yet  the  plaintiff  might  be  entitled  to  damages  at  law  ;  and  great 
complaints  were  constantly  made  by  the  public  that  when  plaintiff  came  into  a 
court  of  equity  for  specific  performance,  the  court  of  equity  sent  him  to  a  court 
of  law  in  order  to  recover  damages,  so  that  the  parties  were  bandied  about,  as  it 
was  said,  from  one  court  to  the  other.  The  object,  therefore,  of  the  act  of  Par- 
liament was  to  prevent  the  parties  from  being  so  sent  from  one  court  to  the 
other;  and,  accordingly,  the  act  provides  that  the  court  may  either  in  addition 
to,  or  in  substitution  for,  the  relief  which  is  prayed,  grant  the  relief  which  would 
otherwise  be  proper  to  be  granted  by  another  court.  But  that  act  never  was  in- 
tended, as  I  conceive,  to  transfer  the  jurisdiction  of  a  court  of  law  to  a  court  of 
equity.  If,  therefore,  a  plaintiff  in  a  suit  in  equity  had  no  equitable  right  at  the 
time  of  filing  the  bill  (for  the  case  would  be  quite  different  if  there  was  an  equi- 
table right  at  the  time  of  filing  the  bill),  so  that  the  bill  was  altogether  improp- 
erly filed  in  equity,  I  am  of  opinion  that  the  act  has  no  application  ;  otherwise 
the  consequence  would  necessarily  be,  that  everybody  who  had  a  doubtful  case 
at  law  would  come  into  equity  for  specific  performance  ;  and,  when  it  appeared 
that  he  had  no  case  in  equity  at  all,  he  would  ask  for  damages,  and  so  almost 
every  action  of  contract  would  be  transferred  from  a  court  of  law  to  a  court  ot 
equity."  Cairns,  L.  J.,  said  :  "  The  important  words  of  the  act  are  these  :  '  In 
all  cases  in  which  the  court  of  chancery  has  jurisdiction  to  entertain  an  applica- 
tion for  the  specific  performance  of  any  covenant,  contract,  or  agreement.' 
That,  of  course,  means  where  there  are,  at  least  at  the  time  of  bill  filed,  all  those 
ingredients  which  would  enable  the  court,  if  it  thought  fit,  to  exercise  its  power 
and  decree  specific  performance;  among  other  things,  where  there  is  the  sub- 
ject matter  whereon  the  decree  of  the  court  can  act.  In  a  case  of  that  kind  the 
court  has  a  discretionary  power  to  award,  under  certain  circumstances,  damages 
in  substitution  for,  or  in  addition  to,  the  decree  for  specific  performance.  The 
object  obviously  was  to  enable  the  court  of  chancery  to  do  complete  justice,  as 
it  was  called— a  phrase  which  assumed  that  there  was  the  power  in  the  court  of 
chancery  to  make  a  decree  to  some  extent,  but  not  to  make  a  decree  to  the  whole 
extent  which  the  case  required.  But  that  seems  to  me  not  in  anyway  to  give  to 
the  court  a  power,  where  it  has  no  jurisdiction,  to  decree  specific  performance 
for  want  of  the  subject  matter  whereon  its  decree  would  operate,  to  give  dam- 
ages by  reason  of  some  antecedent  breach  of  contract." 

47 


•/T,^  COMPENSATION    AND    DAMAGES.  §  S^^- 

of  profits  from  his  trade.'  In  the  case  of  a  contract  to  give 
a  lease  of  a  hotel,  and  to  make  thereon  certain  repairs,  spe- 
cific performance  was  decreed  as  to  the  giving  of  the  lease, 
and  an  inquiry  directed  as  to  damages  in  respect  to  repairs 
which  were  mere  incidents  of  the  asrreement  not  affectinor 
its  substance/     Where  a  bill  having  been  filed  for  the  spe- 

'  Jaques  v.  Miller,  L.  R.  6,  Ch.  D.  153. 

'  Middleton  v.  Greenwood,  2  De  G.  J.  &  S.,  142.     Under  a  contract  to  grant 
a  lease  so  soon  as  the  proposed  lessee  should  build  a  house  on  tiie  land,  the  les- 
sor was  held  entitled  to  damages  for  the  non-building  of  the  house,  and  to  spe- 
cific performance  of  the  contract  to  accept  the  lease.     The  vice-chancellor  said  : 
"  Before  the  passing  of  this  act  a  court  of  equity  had  not  jurisdiction  in  respect 
of  a  building  contract  of  this  description.     But  it  would  have  had  jurisdiction 
before  the  passing  of  the  act  to  compel  the  defendant  to  accept  a  lease  on  the 
plaintiff  waiving  the  condition,  which  he  for  his  own  benefit  inserted,  that  he 
should  not  be  called  upon  to  grant  a  lease  until  a  certain  time.     The  defendant 
has  agreed  to  accept  a  lease  when  required,  and  the  court  has,  therefore,  juris- 
diction.    The  statute  would  not  apply  to  a  case  where  the  object  of  the  agree- 
ment was  simply  the  building  of  the  house  under  such  conditions  and  on  such 
terms  that  it  may  be  assumed  the  court  could  not  grant  specific  performance  ; 
and,  in  such  a  case,  a  plaintiff  could  not  file  a  bill  to  have  damages  instead  of 
specific  performance,  because  there  would  be  no  jurisdiction.     But  there  is  a 
distinct  agreement  here  not  only  to  build   the  house,  but  to  accept  the  lease. 
The  court  having  therefore  acquired  jurisdiction,  may  give  damages,  either  in 
addition  to,  or  in  substitution    for,  specific    performance."      Soames  v.  Edge, 
Johns,  669.     Compare  Norris  v.  Jackson,  i    Johns  &  Hem.,  319.     And  where 
there  was  a  claim  to  be  paid  for  materials  furnished  for  repairs  of  farm  build- 
ings, as  the  court  decreed  specific  performance  of  the  main  part  of  the  agree- 
ment, which  was  to  grant  a  lease,  it  was  held  thai  it  also  had  jurisdiction  to 
give  relief  in  respect  to  the  money  demand.     Lillie  v.  Legh,  3  De  G.  &  J.,  204. 
See  also  Samuda  v.  Lawford,  8  Jur.  N.  S.,  739.    A  mortgagor  having  contracted 
to  grant  a  lease,  the  proposed  lessee  paid  a  year's  rent  in  advance,  took  posses- 
sion, and  commenced  making  alterations  in  the  premises.     The  mortgagee  re- 
fusing to  concur  in  the  lease,  the  lessee  discontinued  the  work  and  gave  up  pos- 
session.    He  thereupon  filed  a  bill  for  specific  performance,  praying  that  the 
mortgagor  might  be  decreed  to  redeem  and  exonerate  the  premises  from  the 
mortgage  debt,  and  from  all  clainis  in  respect  to  the  same,  and  that  an  inquiry 
might  be  directed  to  ascertain  the  damages  sustained  by  the  plaintiff,  and  the 
defendant  be  decreed  to  pay  such  damages  when  ascertained  to  the  plaintiff. 
Sir  J.  Romilly,  master  of  the  rolls,  said  :  "  I  have  had  considerable  doubt  about 
this  case.     My  opinion  certainly  is  that  Sir  Hugh  Cairns'  act  enabling  this  court 
to  give  damages  was  never  meant  simply  to  transfer  the  jurisdiction  from  a 
court  of  law  into  equity,  and  that  when  persons  enter  into  a  contract  and  know 
that  specific  performance  cannot  be  given,  they  can  come  into  equity  merely  for 
the  purpose  of  obtaining  damages.     For  instance,  when  the  purchaser  knows 
that  the  vendor  cannot  make  a  good  title  to  the  property  sold,  it  was  not  in- 
tended that  he  should  be  enabled  to  file  a  bill  merely  to  get  the  damages  as- 
sessed under  that  act.     But  in  a  bona  fide  case,  where  the  court  at  the  hearing 
has  thought  that  the  contract  could  not  be  specifically  performed,  the  court  is 
enabled,  if  it  shall  think  fit,  to  award  damages  to  the  party  injured.     I  am  dis- 
posed to  think  that  if  the  plaintiff  did  not  know,  he  had  good  reason  for  believ- 
ing that  this  court  could  not  give  specific  performance  of  this  contract,  and  that 
if  the  mortgagee  refused  to  join  in  the  demise,  he  could  do  nothing  but  recover 
damages  at  law.     But  considering  the  way  in  which  the  defendant  entered  into 


§   5l8-  UNDER    ENGLISH    STATUTE.  739 

cific  performance  of  a  contract  and  damages,  the  defendant 
fulfils  before  the  suit  is  brought  to  a  hearing,  the  plaintiff 
is  entitled,  notwithstanding,  to  consequential  relief  in  dam- 
ages for  injury  sustained  in  consequence  of  the  delay  of  the 
defendant  in  performing  the  contract.'  "A  defendant 
could  not  be  allowed  to  have  it  at  his  option  by  perform- 
ing the  equitable  portion  of  the  relief,  to  deprive  the  plain- 
tiff of  the  consequential  relief  conferred  by  statute,  or  turn 
him  over  to  a  court  of  law  for  the  completion  of  his  rem- 
edy. Such  a  course  would  quite  frustrate  the  purpose  of 
the  act,  without  really  being  of  any  benefit  to  either  plain- 
tiff or  defendant."'  If  the  court  would  not  have  interfered 
previous  to  Lord  Cairns'  act,  it  will  not  interfere  now  on 
the  mere  possibility  that  the  plaintiff  may  be  entitled  to 
some  damages  which,  by  bringing  an  action,  he  may  be  able 
to  recover  in  a  court  of  law ;  as  if  damages  are  claimed  for 
breach  of  an  agreement  to  form  a  partnership."  Where,  in 
a  suit  for  the  specific  performance  of  a  resolution  passed  by 
the  board  of  directors  of  a  railroad  company  under  which 
the  plaintiff  alleged  that  he  was  entitled  to  have  a  certain 
number  of  shares  allotted  to  him,  and  also  prayed  that  if  it 

this  contract,  I  am  not  disposed  in  this  instance  to  send  the  case  to  law,  and  I 
will  make  an  order  to  assess  the  damages  sustained  by  the  plaintiff,  and  I  shall 
give  no  costs  up  to  and  including  the  hearing.  The  plaintiff  will  get  all  subse- 
quent costs.  The  reason  why  I  do  not  dismiss  the  bill  is,  that  it  is  a  new  case, 
and  I  do  not  think  it  right  under  the  peculiar  circumstances  of  this  case  to  put 
the  plaintiff  to  his  actional  law  to  recover  the  damages  which  he  has  sustained." 
Howe  V.  Hunt,  31  Beav.,  420 ;  S.  C„  8  Jur.  N.  S.,  834. 

1  Cory  V.  Thames  Iron  Works  &  Shipbuilding  Co.,  11  W.  R.,  589. 

2  Ibid.,  per  Wood,  V.  C. 

Scott  V.  Rayment,  L.  R.  7,  Eq.  112.  The  chancer}'  amendment  act  of  1858 
does  not  extend  the  jurisdiction  of  the  court  to  cases  where  there  is  a  plain 
common  law  remedy,  and  where  before  the  statute  the  court  would  not  have  in- 
terfered. Wicks  v.  Hunt,  Johns,  372.  In  a  case  where  the  court  has  no  juris- 
diction to  grant  the  specific  performance  of  a  contract,  it  has  no  jurisdiction 
under  the  21  &  22  Vict.  Ch.,  27,  to  award  and  assess  damages  for  its  non-per- 
formance. Rogers  v.  Challis,  27  Beav.,  175;  as,  for  instance,  an  agreement  to 
borrow  money,  S.  C.^  7  W.  R.,  710.  "  It  is  admitted  on  both  sides,  that  the  21 
&  22  Vict.  Ch.,  27,  only  applies  to  giving  damages  where  the  court  gives  some 
specific  performance."  Romilly,  M.  R.,  in  Chinnock  v.  Sainsbury,  30  L.  J.  N.  S., 
409.  In  Collins  v.  Stutely,  7  W.  R.,  710,  it  was  held  that  under  the  act,  a  plaintiff 
would  not  be  entitled  to  damages  in  equity,  for  the  non-performance  of  an  act 
iox  \<i\\\(:X\  prima  facie  he  might  have  obtained  specific  performance,  after  the 
doing  of  some  act  disentitling  him  to  specific  performance. 


740  COMPENSATION    AND    DAMAGES.  §  S^Q- 

should  appear  that  all  the  shares  had  been  allotted  to  the 
other  shareholders,  the  directors  might  indemnify  him  out 
of  their  own  shares,  or  might  be  charged  with  damages,  it 
appeared  that  all  the  shares  had  been  allotted  before  the  fil- 
ing of  the  bill,  it  vvas  held  that  as  relief  by  way  of  specific 
performance  was  not  possible,  the  plaintiff's  claim  to  dam- 
ages could  not  be  sustained  under  Lord  Cairns'  act/  Where 
the  plaintiff  in  a  suit  for  the  specific  performance  of  an 
agreement  to  grant  a  lease,  by  his  delay  allowed  the  term 
for  w^hich  the  lease  was  to  have  been  given  to  expire,  before 
the  cause  could  be  heard,  it  was  held  that  the  court  would 
not  direct  an  inquiry  as  to  damages,  which  was  a  remedy 
wholly  ancillary  to  specific  performance/  This  act  makes 
it  discretionary  with  the  court  whether  in  a  given  case  it 
will  or  will  not  award  damages.'  The  court  has  no  power 
under  the  act,  upon  motion  after  a  decree  for  the  specific 
performance  of  a  covenant,  to  add  an  order  for  assessing 
damages  for  breach  of  the  covenant  on  facts  happening  sub- 
sequent to  the  decree.' 

§  519.  Ijiterest,  rents,  and pi'ofits. — Where,  under  aeon- 
tract  for  the  sale  and  purchase  of  real  estate,  the  vendee  is 
not  put  in  possession,  as  is  usually  done  in  this  country, 
and  there  is  delay  in  completion,  questions  sometimes  arise 
as  to  the  rights  and  liabilities  of  the  respective  parties  in 
relation  to  interest  or  rents  and  profits.  As  the  purchase 
money  belongs  to  the  vendor  from  the  time  fixed  for  com- 
pleting the  contract,  as  a  rule  he  w^ill  be  entitled  to  interest 
on  it  if  it  be  not  then  paid  or  tendered  ;  and  as  the  thing 
sold  becomes  the  property  of  the  purchaser,  he  will  be  en- 
titled to  the  rents  and  profits  from  the  same  time.'     The 


'  Ferguson  v.  Wilson,  L.  R.  2,  Ch.  ■]•].     ^  De  Brassac  v.  Martin,  1 1  W.  R.,  1020. 

^  Durell  V.  Pritchard,  L.  R.  i,  Ch.  244. 

*  Corp.  of  Hythe  v.  East,  L.  R.  i,  Eq.  620. 

"  Hart  V.  Brand,  i  A.  K.  Marsh,  161  ;  Breckenridge  v.  Hoke,  4  Bibb,  273; 
Ramsay  V.  Brailsford,  2  Dessaus  Eq.,  592  ;  Boyle  v.  Rowand,  3  lb.,  555  ;  Thomp- 
son V.  Davenport,  i  Wash.,  127;  Stevenson  v.  Maxwell,  2  Const.,  408  ;  Drake 
V.  Barton,  18  Minn.,  462.  In  Cole  v.  Tyson,  8  Ired.  Eq.,  170,  the  vendee  was 
permitted  to  take  possession,  and  after  paying  a  portion  of  the  purchase  money. 


§519-  INTEREST,    RENTS,    AND    PROFITS.  74 1 

general  rule  may  of  course  be  varied  by  express  stipulation  ; 
as  where  it  was  agreed  that  the  rents  should  be  reserved  to 
the  vendor,  which  was  held  to  excuse  the  vendee  from  the 
payment  of  interest  on  the  unpaid  purchase  money."  When 
rents  are  charged  against  the  vendee  in  possession,  interest 
should  be  allowed  him  on  necessary  outlays  he  has  made  on 
the  property.  If  he  has  taken  up  obligations  for  the  ven- 
dor, he  should  be  credited  with  the  actual  amount  paid  by 
him.'  If  it  is  the  fault  of  the  purchaser  that  the  contract 
is  not  completed,  he  will  be  liable  to  interest  although  the 
purchase  money  has  been  ready  and  lying  idle.'  Where  the 
title  was  not  made  out  until  after  suit,  and  the  delay  was 
caused  by  the  purchaser's  raising  other  points  which  made 
the  suit  necessary,  it  was  held  that,  as. the  delay  was  not  the 
fault  of  the  vendor,  the  purchaser  must  pay  interest  from 
the  day  fixed  for  completion.*  And  the  vendee  will  be  thus 
liable,  if  he  has  used  the  money,  or  derived  the  least  advan- 
tage from  it.  Where  the  vendee,  upon  taking  possession, 
paid  the  money  into  his  banker's,  and  notified  the  vendor 
that  he  was  ready,  and,  while  the  title  was  being  investi- 
gated, kept  at  his  banker's  an  amount  equal  to  the  purchase 
money,  except  for  a  few  days,  when  it  was  a  little  less,  it 

died  leaving  minor  heirs.  Thereupon  the  vendor  entered  on  the  land  and  claimed 
it,  pulled  down  and  sold  houses,  built  others  and  finally  sold  the  property.  The 
heirs  having  brought  a  suit  for  specific  performance,  it  was  held  that  the  vendor 
was  liable  for  the  rental  value  of  the  land  during  his  occupation.  Ruffin,  C.  J., 
in  delivering  the  opinion  of  the  court,  said  :  "  One  thus  abusing  the  power  given 
by  the  legal  title,  and  denying  the  rights  of  infants  for  whom  he  was  trustee,  can- 
not be  looked  on  in  a  court  of  equity  in  any  light  but  that  of  a  tort  feasor  by 
reason  of  a  wilful  and  gross  breach  of  trust,  and  therefore  he  is  justly  chargea- 
ble with  the  highest  occupier's  rent  from  the  moment  of  the  breach  of  trust."  In 
another  case,  where  the  plaintiff  was  entitled  to  a  conveyance  in  March,  1867, 
and,  in  November,  1868,  the  defendants  with  notice  of  his  equity  took  possession 
of  the  land,  denied  his  right  to  it,  and  for  more  than  ten  years  occupied  and 
claimed  it  as  owners,  it  was  held  that  he  was  entitled  to  the  rental  value  of  the 
land  from  the  commencement  of  the  suit,  which  was  a  sufficient  demand  for  a 
conveyance.  The  court  said  :  "  Whatever  may  be  the  rule  where  a  trustee  has 
not  himself  occupied  and  enjoyed  the  trust  estate,  but  has  received  rents  from 
it,  justice  and  equity  demand  that  where  he  has  wrongfully  excluded  the  true 
owner,  and  has  himself  occupied  and  enjoyed  the  fruits  of  the  estate,  he  shall  at 
least  account  for  its  rental  value."     Henlen  v.  Martin,  53  Cal.,  321. 

'  Brooke  v.  Champernowne,  4  CI.  &  Fin.,  589,  61 1. 

^  Jones  v.  Jones,  49  Texas,  683.  ^  Calcraft  v.  Roebuck,  i  Ves.,  221. 

*  Monro  v.  Taylor,  3  M'N.&  G.,  713. 


742  COMPENSATION    AND    DAMAGES.  §   519- 

was  held  that  as  the  purchase  money  deposited  supplied  the 
balance  which  he  must  otherwise  have  kept  at  his  banker's, 
he  was  only  released  from  the  payment  of  interest  in  respect 
to  the  difference  between  the  average  balance  he  had  main- 
tained at  his  banker's  for  three  years  previous  to  the  pur- 
chase, and  the  average  balance  during  the  investigation  of 
the  title.'  Where  under  a  contract  for  the  purchase  of  land 
for  seven  hundred  dollars,  two  hundred  dollars  were  paid 
down,  and  the  balance  was  to  be  paid  when  the  vendor  could 
give  a  good  title,  and  the  vendee  had  the  peaceable  posses- 
sion and  enjoyment  of  the  property  for  fifteen  years,  with- 
out paying  or  tendering  the  balance  of  the  purchase  money, 
and  the  land  during  that  period  had  largely  increased  in 
value,  it  was  held  that  the  purchaser  could  not  maintain  a 
suit  for  specific  performance  without  a  tender  of  interest  or 
of  compensation  for  the  use  and  occupation."  The  vendee 
will  not  be  chargeable  with  interest,  if  the  purchase  money 
has  been  ready  and  unproductive  in  his  hands,  and  notice 
to  that  effect  has  been  given  by  him  to  the  vendor,  and  the 
delay  is  caused  by  the  latter.'  In  a  suit  for  specific  perform- 
ance, brought  by  the  vendee  of  land  against  the  vendor,  the 
latter  contended  that  if  a  conveyance  was  decreed,  the  ven- 
dee ought  to  pay  interest  on  the  purchase  money,  although 

'  Winter  V.  Blades,  2  Sim.  &  Stu.,  393.     ^  Schuessler  v.  Hatchett,  58  Ala.,  181. 

^  Howland  v.  Norris,  i  Cox,  59 ;  Powell  v.  Martyr,  8  Ves.,  146 ;  Roberts  v. 
Massey,  13  lb.,  561  ;  Dyson  v.  Hornby,  4  De  G.  &  Sm.,  481  ;  Regent's  Canal 
Co.  V.  Ware,  23  Beav.,  575  ;  De  Visme  v.  De  Visme,  i  M'N.  &  G.,  352  ;  Kester 
V.  Rockel,  2  Watts  &  Serg.,  365  ;  Rutledge  v.  Smith,  i  McCord  Ch.,  403  ;  Steven- 
son V.  Maxwell,  2  Sandf.  Ch.,  273  ;  Hunter  v.  Bales,  24  Ind.,  299.  In  a  suit  for 
specific  performance,  brought  by  the  vendor  of  several  tracts  of  land,  each  of 
which  was  sold  separately  at  auction  to  the  defendant,  it  appeared  that  the  lat- 
ter refused  to  complete  his  purchase,  because  the  complainant  had  no  title  to  one 
of  the  principal  tracts  which  the  defendant  alleged  was  the  chief  inducement  to 
his  entering  into  the  contract.  As  the  asserted  object  of  the  purchase  was  not 
sustained  by  proof,  the  following  decree  was  rendered  :  "That  the  complainant 
do  forthwith  make,  execute,  and  deliver  to  the  defendant,  good  and  sufficient  con- 
veyances for  the  other  tracts  in  the  bill  mentioned  ;  and  that  the  defendant  do 
thereupon  pay  to  the  complainant  the  amount  of  the  principal  of  the  purchase 
money  for  the  same ;  and,  as  it  is  owing  to  the  complainant's  own  neglect  that 
the  contract  has  not  been  before  complied  with,  it  is  further  decreed,  that  the 
defendant  be  released  from  the  payment  of  interest  on  said  purchase  money  un- 
til tlie  time  of  tendering  the  title.  Lastly,  that  the  costs  of  the  suit  be  paid  by 
the  defendant."  Osborne  v.  Bremar,  i  Dessaus  Eq.,  486.  See  White  v.  Dob- 
son,  17  Gratt.,  262. 


§519-  INTEREST,    RENTS,    AND    PROFITS.  743 

the  money  was  tendered  and  the  vendor  refused  to  accept 
it ;  because,  as  the  land  was  covered  with  timber  which  had 
been  growing  during  the  whole  period  of  the  litigation,  the 
vendee  would,  upon  receiving  a  conveyance,  have  the  bene- 
fit of  the  growth,  which  would  be  equivalent  to  the  rents 
and  profits.  It  was  held  that  the  vendor  was  not  entitled 
to  the  interest  subsequent  to  the  tender  and  refusal,  unless 
he  could  show  that  the  purchaser  had  made  use  of  the  money, 
or  gained  some  advantage  from  it,  but  thatthe  vendor  should 
be  allowed  for  taxes  assessed  on  the  land  paid  by  him.' 
When  the  interest  exceeds  the  rents  and  profits,  and  the 
■delay  is  caused  by  the  vendor,  he  will  not  be  entitled  to  in- 
terest, but  only  to  the  interim  rents  and  profits ;  ^  notwith- 
standing it  is  agreed  that  if  a  conveyance  be  not  executed, 
and  the  purchase  money  paid,  by  the  day  named,  interest 
shall  run  until  the  purchase  is  completed  ; '  unless  the  stipu- 
lation expressly  extends  to  every  cause  of  delay.'  Where 
the  interest  was  considerably  more  than  the  rents  and  prof- 
its, it  was  held  that  the  vendor  should  be  left  in  possession 
of  them  until  a  good  title  was  shown,  and  that  from  that 
time  he  would  be  entitled  to  interest,  and  the  purchaser  to 
reasonable  rents  and  profits,  although,  in  consequence  of  the 

'  Davis  V.  Parker,  14  Allen,  94, 

^  Paton  V.  Rogers,  6  Mad.,  236  ;  Jones  v.  Mudd,  4  Russ,,  118.  In  a  suit  for 
the  specific  performance  of  a  contract  to  convey  land  which  was  suitable  for 
making  brick,  and  of  no  value  for  anything  else,  it  appeared  that  after  the  con- 
tract of  sale  was  entered  into  the  vendor  conveyed  the  land  to  a  third  person 
who  had  knowledge  of  the  previous  contract,  and  who  occupied  the  premises  and 
manufactured  brick.  It  was  held  that  the  plaintiff  was  entitled  to  interest  on  the 
purchase  money  during  the  time  possession  was  withheld.  Worrall  v.  Munn, 
38  N.  Y.,  137. 

3  Monk  v.  Huskisson,  4  Russ.,  121,  n.  In  New  York,  as  a  general  rule,  in  case 
of  failure  to  perform  by  the  vendor,  the  vendee  is  only  entitled  to  nominal  dam- 
ages, unless  he  has  paid  part  of  the  purchase  money,  in  which  case  he  isentided 
to  such  money  and  interest.  Baldwin  v.  Munn,  2  Wend.,  399  ;  Peters  v.  McKeon, 
4  Denio,  546;  Conger  v.  Weaver,  20  N.  Y.,  145  ;  Mack  v.  Patchin,  42  lb.,  167. 
If,  however,  the  vendor  is  guilty  of  fraud,  or  can  convey,  but  will  not,  or  entered 
into  the  contract  knowing  that  he  could  not  convey,  or  if  it  is  in  his  power  to 
remedy  a  defect  in  his  title,  and  he  refuses  or  neglects  to  do  so,  or  if  he  refuses 
to  incur  such  reasonable  expenses  as  would  enable  him  to  fulfil  his  contract,  he 
is  liable  to  the  vendee  for  the  loss  of  the  bargain,  under  rules  analogous  to  those 
applied  in  the  sale  of  personal  property.  Margraff  v.  Muir,  57  N.  Y.,  155,  per 
Earl,  J. 

*  Esdaile  v.  Stephenson,  i  Sim.  &  Stu.,  122. 


744  COMPENSATION    AND    DAMAGES.  §5^9. 

destruction  of  the  buildings  by  fire,  no  rents  had  actually 
been  received.'  Where  the  purchaser  was  not  allowed  to 
take  possession  of  the  land  before  the  purchase  money  was 
paid,  and  the  vendor  suffered  the  land  to  lie  to  waste,  it  was 
held  that  the  purchaser  was  entitled  to  set  off  against  the 
interest  payable  by  him  the  amount  of  rent  which  might 
have  been  received,  and  the  amount  of  deterioration.'  A 
stipulation  that  the  purchaser  shall  pay  interest  from  the 
day  fixed  for  completion  whatever  may  be  the  cause  of  de- 
lay, will  not  apply  unless  the  delay  arise  from  mere  accident, 
and  not  from  fraud  or  negligence  on  the  part  of  the  ven- 
dor;' though  it  was  formerly  held  otherwise.'  If  there  is 
no  stipulation  to  the  contrary,  the  vendee  is  ordinarily  lia- 
ble to  the  payment  of  interest  from  the  time  of  taking  pos- 
session ; '  even  when  the  delay  is  owing  to  the  neglect  of 
the  vendor.'  This  rule,  however,  though  correct  in  princi- 
ple, and  in  the  main  salutary,  cannot  always  be  enforced 
without  hardship  to  the  vendee.  In  England,  where  most 
of  the  real  estate  is  productive,  and  the  rate  of  interest 
adopted  by  courts  of  equity,  in  cases  of  specific  perform- 
ance, only  four  per  cent.,  its  operation  is  equable  and  just. 
But  not  so,  in  all  cases,  in  this  country,  where  a  much  larger 
proportion  of  the  land  is  unproductive,  and  the  rate  of  in- 

1  Lombard  v.  Chicago  Sinai  Congregation,  75  111.,  271. 

^  Phillips  V.  Sylvester,  L.  R.  8,  Ch.  173. 

^  Monk  V.  Huskisson,  supra  ;  De  Visme  v.  De  Visme,  sjipra  ;  Robertson  v. 
Skelton,  12  Beav.,  363  ;  Sherwin  v.  Shakspeare,  17  lb.,  267  ;  S.  C,  5  De  G.  M. 
&  G.,  517;  Vickers  v.  Hand,  26  Beav.,  630;  Dean  of  Durham  ex  parte,  2  Jur. 
N.  S.,  345- 

"  Esdaile  v.  Stephenson,  supra  ;  Greenwood  v.  Churchill,  8  Beav.,  413.  If  the 
parties  were  mutually  mistaken  as  to  the  vendor's  title  to  the  land  sold,  and  the 
vendor,  before  filing  his  bill  to  set  aside  the  sale,  made  no  demand  for  the  sur- 
render of  the  property,  he  will  only  be  entitled  to  rents  and  profits  from  the  com- 
mencement of  the  suit,  and  be  liable  to  pay  the  vendee  interest  on  the  purchase 
money  from  the  same  time,  and  also  to  pay  him  for  permanent  improvements 
made  on  the  land  not  exceeding  the  amount  of  rents  and  profits.  Irick  v.  Ful- 
ton, 3  Gratt.,  193. 

^Manning  ex  parte,  2  P.  Wms.,  410;  Smith  v.  Dolman,  6  Bro.  P.  C,  291  ; 
Blount  V.Blount,  3  Atk.,  636  ;  Atty.  Genl.  v.  Christ  Church,  i  3  Sim  ,  214  ;  Cowpe 
V.  Bakewell,  13  Beav.,  421  ;  Birch  v.  Joy,  3  House  of  Lds.,  598  ;  Selden  v.  James, 
6  Rand,  .165  ;  Boyce  v.  Britchett,  6  Dana,  231  ;  CuUum  v.  Bank,  4  Ala.,  22  ; 
Oliver  v.  Hallam,  i  Gratt.,  298. 

^  Fludyer  v.  Cocker,  12  Ves.,  25. 


§  520.  LIABILITY    FOR    REPAIRS    AND    LOSSES.  745 

terest  higher.'  It  was  held  in  a  recent  case  in  England,  that 
where  the  purchaser  exercises  acts  of  ownership  over  the 
property,  he  is  liable  to  the  payment  of  interest  on  the  pur- 
chase money  pending  delay  in  the  completion  of  the  con- 
tract, although  the  delay  is  occasioned  by  the  vendor,  and 
the  land  is  unoccupied."  In  a  contract  for  the  sale  of  a  re- 
version, the  wearing  away  of  the  life  after  which  the  estate 
will  vest  in  possession,  is  deemed  equivalent  to  possession, 
and  as  creating  in  the  purchaser  a  liability  to  pay  interest 
from  the  time  agreed  upon  for  the  completion  of  the  con- 
tract ; '  unless  the  period  for  completing  the  contract  is  not 
specified,  in  which  case  the  interest  commences  when  a 
good  title  is  shown." 

§  520.  Liability  for  repairs  and  losses. — Where  the 
vendor  has  received  the  rents,  though  not  occupying  the 
position  of  a  bailiff  at  common  law,  yet  if  it  was  his  fault 
that  the  vendee  could  not  safely  take  possession,  and  the 
rents  were  allowed  to  run  in  arrear,  he  will  be  answerable 
not  only  for  such  rents  as  he  received,  but  also  for  those  he 
might  have  received ; '  but  not  unless  it  is  shown  that  he 
acted  otherwise  than  a  prudent  owner  would  have  done." 


'  "  In  the  case  of  a  vacant  lot,  or  of  wild  land,  not  bought  for  immediate  im- 
provement or  cultivation,  and  where  there  is  no  express  contract  for  interest,  it 
would  be  repugnant  to  the  moral  sense  to  compel  the  purchaser  to  pay  interest 
on  the  price,  when,  through  the  default  or  negligence  of  the  vendor,  he  had  not 
received  a  conveyance,  and  thus  had  been  for  years  prevented  from  disposing  of 
the  property.  Nor  would  the  fact  that  the  buyer  had  taken  all  the  possession 
that  he  could  of  such  property,  and  had  not  kept  the  money  by  him  all  the  time 
in  order  to  pay  it  on  receiving  the  title,  affect  the  natural  equity  of  the  case. 
Yet,  by  the  modern  English  rule,  he  would  be  charged  with  interest  under  such 
circumstances."     Stevenson  v.  Maxwell,  2  Sandf.  Ch.,  302. 

""  Ballard  v.  Schutt,  L.  R.  15,  Ch.  D.  122. 

3  Davy  V.  Barber,  2  Atk.,  489;  Bailey  v.  Collett,  18  Beav.,  179;  Wallis  v. 
Sarel,  5  De  G.  &  Sm.,  429.     See  Owen  v.  Davies,  3  Atk.,  637. 

*  Enraght  v.  Fitzgerald,  2  Dr.  &  W.,  43. 

^  Wilson  V.  Clapham,  i  J.  &  W.,  36  ;  Sherwin  v.  Shakspeare,  17  Beav.,  267  ; 
S.  C,  5  De  G.  M.  &  G.,  517.     And  see  Howell  v.  Howell,  2  My.  &  Cr.,  478. 

'  Wheeler  v.  Home,  Willes,  208.  Where  the  owner  of  an  undivided  half  of 
land  enters  into  a  contract  to  convey  the  whole,  the  vendee,  if  he  elects  to  take 
a  conveyance  of  the  vendor's  interest,  need  only  pay  or  tender,  as  the  purchase 
money,  one-half  the  contract  price,  and  the  vendor,  in  such  case,  is  not  entitled 
to  any  portion  of  the  rents  and  profits  which  accrued  subsequent  to  the  making 
of  the  agreement.     Marshall  v.  Caldwell,  41  Cal.,  611. 


746  COMPENSATION    AND    DAMAGES.  §  52O. 

With  reference  to  repairs,  and  the  sustenation  of  the  prem- 
ises, these  must  be  borne  by  the  vendor  up  to  the  time  at 
which  a  purchaser  can  safely  take  possession,  which  is  the 
time  at  which  a  good  title  is  shown.'  Although  if  the  com- 
pletion of  the  sale  has  been  delayed  by  the  vendor,  the  court 
will  compel  him  to  make  an  allowance  for  any  deterioration 
of  the  property  since  the  contract,  yet  he  will  not  be  liable 
for  deterioration  occurring  after  the  vendee  has  taken  pos- 
session, or  ought  to  have  done  so.'  Deterioration  caused 
by  the  misconduct  of  the  vendor  after  the  contract  and 
while  he  is  in  possession,  must  be  paid  for  by  him  to  the 
purchaser."  Accidental  loss  happening  without  the  fault 
of  the  vendor  subsequent  to  the  sale,  must  be  borne  by  the 
purchaser,  and  will  not  therefore  be  a  defence  to  the  ven- 
dor's suit  for  specific  performance.*  Thus,  where  the  ven- 
dor was  obliged  to  expend  money  in  shoring  up  the  prop- 
erty, it  was  held  that  he  was  entitled  to  have  this  repaid  by 
the  purchaser."  The  test  which  party  should  bear  the  con- 
sequences of  an  accidental  loss  pending  a  contract  of  sale 
is,  which  was  the  owner  at  the  time.*  A  loss  to  the  prop- 
erty which  occurs  before  the  vendor  is  in  a  situation  to  give 
a  good  title,  must  be  borne  by  him,  and  not  by  the  pur- 
chaser ; '  and  if  a  vendor,  who  is  under  no  obligation  to  in- 

'  Carrodus  v.  Sharp,  20  Beav.,  56.  The  same  principle,  under  the  same  cir- 
cumstances, would  throw  upon  the  vendor  a  loss  resulting  from  the  entire 
destruction  of  the  property. 

"^  Foster  v.  Deacon,  3  Mad.,  394;  Lord  v.  Stephens,  i  Y.  &  C,  222  ;  Binks  v. 
Lord  Rokeby,  2  Swanst.,  222  ;  Minchin  v.  Nann,  4  Beav.,  332.  When  by  a  con- 
tract of  sale  no  timber  is  to  be  cut  until  the  whole  purchase  money  is  paid,  the 
vendee  has  notwithstanding  an  equitable  right  to  the  timber,  which  becomes  a 
legal  right  when  he  has  fulfilled  or  offered  to  fulfil  the  contract,  though  he  or 
some  one  else  may  have  wrongfully  cut  the  timber.  Haven  v.  Beidler  Manf. 
Co.,  40  Mich.,  286. 

^  Foster  v.  Deacon,  supra. 

*■  Poole  V.  Shergold,  2  Bro.  C.  C,  118  ;  Cass  v.  Ruddle,  2  Vern.,  280;  Paine 
v.  Meller,  6  Yes.,  349;  Harford  v.  Purrier,  i  Mad.,  532  ;  Thompson  v.  Gould,  20 
Pick.,  134;  Kechnie  v.  Sterling,  48  Barb.,  330;  Blew  v.  McClelland,  29  Mo., 
304;  Hill  v.  Cumberland  Valley  Mu.  Protection  Co.,  59  Pa.  St.,  474. 

'  Robertson  v.  Skelton,  12  Beav.,  260.  "  Willis  v.  Culvan,  107  Mass.,  514. 

'  Christian  v.  Cabell,  22  Gratt.,  82.  In  Wyvill  v.  Bishop  of  Exeter,  i  Price, 
294,  McDonald,  C.  B.,  said  that  a  court  of  equity  would  enforce  specific  per- 
formance without  regarding  which  party  might  be  benefited  or  prejudiced  by 
unforeseen  events  where  a  purchaser  had  actually  accepted  the  title  ;  but  not  if 


§  520.  LIABILITY    FOR    REPAIRS    AND    LOSSES.  747 

sure,  effects  an  improper  insurance,  whereby  the  property 
is  subject  to  forfeiture,  he  cannot  compel  specific  perform- 
ance of  the  contract.'  In  a  contract  for  the  sale  of  land 
by  A.  to  B.,  it  was  agreed  that  A.  should  furnish  an  abstract 
of  title,  and,  in  case  it  was  not  satisfactory,  he  was  to  elect 
to  perfect  the  title,  or  return  the  money  paid  and  cancel  the 
contract.  A.  neglected  to  show  a  satisfactory  title,  or  to 
exercise  his  option  although  notified  so  to  do,  and  he  re- 
mained in  possession.  Meanwhile,  valuable  buildings  on 
the  premises  having  been  destroyed  by  fire,  B.  brought  a 
suit  for  specific  performance  of  the  contract  as  to  the  land, 
and  compensation  for  the  loss,  which  was  decreed.''  Timber 
blown  down  between  the  time  of  signing  the  contract  and 
the  conveyance,  will  belong  to  the  purchaser ;  and  if  the 
seller  cut  timber  down,  he  must  pay  for  it,  and  if  it  be  orna- 
mental timber,  the  purchaser  may  be  relieved  from  the  con- 
tract." Any  deterioration  to  the  property  caused  by  the  ven- 
dee, must  of  course  be  his  loss ;'  and  so  if  the  value  of  the 
estate  be  enhanced  or  diminished  without  the  fault  of  either 
party,  the  benefit  or  loss  will  fall  to  the  purchaser.* 

the  title  had  not  been  accepted  by  him.  On  the  other  hand,  in  Paine  v.  Meller, 
supra.  Lord  Rosslyn  did  not  consider  such  acceptance  necessary,  and  he  ac- 
cordingly directed  an  inquiry  whether  a  good  title  could  be  made.  In  that  case, 
the  title  was  not  only  objected  to  as  defective,  but  the  property  was  also  subject 
to  a  charge  for  annuities,  though  a  trust  of  stock  had  been  declared  for  their 
payment.  The  purchaser  having  waived  his  objection  to  the  title,  and  agreed 
to  complete  the  purchase  upon  receiving  an  indemnity  against  the  annuities,  be- 
fore the  indemnity  was  given  the  premises  were  destroyed  by  fire.  Lord  Eldon, 
hov/ever,  refused  to  decree  specific  performance,  unless  it  was  shown  that  the 
purchaser  had  distinctly  accepted  the  title  ;  and  he  directed  a  reference  as  to 
the  fact  of  the  acceptance.  He  said  :  "  As  to  the  mere  effect  of  the  accident 
itself,  no  solid  objection  could  be  founded  upon  that  simply.  For,  if  the  party, 
by  the  contract,  has  become  in  equity  the  owner  of  the  premises,  they  are  his  to 
all  intents  and  purposes.  It  therefore  becomes  important,  in  cases  of  this  sort, 
to  ascertain  the  period  at  which  the  purchaser  is  to  be  regarded  as  the  owner. 
He  certainly  must  be  so  considered  from  the  date  of  the  bargain,  where  the 
vendor  is  in  no  default,  and  is  prepared  to  convey  a  good  title.  But  if,  accord- 
ing to  the  cases,  a  court  of  equity  will  not  compel  the  purchaser  to  accept  a 
title  which  the  vendor  cannot  make  out  to  be  clearly  good  and  free  from  incum- 
brance, how  is  the  purchaser  to  be  regarded  as  the  owner  till  these  objects  are 
effected,  and  the  vendor  is  prepared  to  make  the  title  according  to  the  con- 
tract.?" 

1  Dawson  v.  Solomon,  8  W.  R.,  123. 

*  Lombard  v.  Chicago  Sinai  Congregation,  64  III.,  477. 

^  Magennis  v.  Fallon,  2  Moll.,  5S4.  ■•  Harford  v.  Furrier,  i  Mad.,  532. 

"  Sug.  V.  &  P.,  820. 


748  COMPENSATION    AND    DAMAGES.  §   52  1. 

§  521.  Allowance  for  improvements. — When  a  purchaser 
of  land  enters  into  possession,  and,  on  the  faith  of  the  con- 
tract, makes  valuable  improvements,  but  fails  to  establish 
such  a  case  as  entitles  him  to  specific  performance,  the  bill 
may  be  retained  for  the  purpose  of  allowing  him  compen- 
sation ;  and,  when  the  amount  is  ascertained,  the  court  may 
charge  the  land  with  its  payment,  unless  the  right  of  a  third 
person  to  the  land  has  intervened.'  Where  an  alleged  con- 
tract of  sale  was  not  sustained  by  the  evidence,  and  the 
vendor  was  insolvent,  the  court  decreed  that  the  property 
should  be  sold,  and  the  proceeds  of  the  sale  be  first  applied 
to  the  payment  of  the  money  expended  by  the  vendee  in 
improvements,  and  the  balance  be  paid  over  for  the  benefit 
of  the  creditors  of  the  vendor ;  the  vendee  to  be  allowed  to 
retain  the  rents,  which,  with  the  concurrence  of  all  parties, 
had  been  paid  to  him  when  they  accrued,  as  his  own."  A 
party  who  files  a  bill  to  enforce  his  claim  to  real  estate 
against  a  person  who  in  good  faith  supposing  he  has  a  per- 
fect title  to  the  property  has  made  improvements  on  the 
land,  will  be  compelled  to  make  due  compensation  to  such 
person  for  his  improvements.'     This  principle  of  equity  is 

'  Aday  v.  Echols,  18  Ala.,  353  ;  Evans  v.  Battle,  19  lb.,  398;  Cox  v.  Cox,  59 
lb.,  591  ;  Pilcher  V.  Smith,  2  Head,  208  ;  Hilton  v.  Duncan,  i  Coldw.,  313.  A. 
agreed  to  convey  to  B.  seventy-five  acres  of  a  tract  of  land  in  consideration 
of  B.'s  selling,  as  A.'s  agent,  the  balance  of  the  tract.  This  B.  nearly  suc- 
ceeded in  doing,  after  the  most  assiduous  efforts,  when  A.  finally  himself 
sold  the  residue  of  the  tract,  and  put  an  end  to  the  contract.  It  was  held 
that  B.  was  entitled  to  an  apportioned  remuneration.  To  ascertain  the  amount, 
the  cause  was  referred  to  a  master  to  determine  what  war  the  fair  and  ordi- 
nary commission  for  the  sale  of  land  in  like  circumstances  in  the  vicinity  ;  the 
sum  ascertained  to  be  due  to  be  a  charge  upon  the  seventy-five  acres  until 
paid  ;  in  default  of  which,  the  court  would  direct  a  sale.  Williams  v.  Cham- 
pion, 6  Ohio,  169.  When  there  is  a  judgment  lien  on  the  land  against  several 
co-sureties,  including  the  vendor,  and  the  purchaser  pays  the  judgment,  he  will 
be  subrogated  to  the  rights  of  the  vendor,  and  may  maintain  a  bill  in  equity 
against  the  other  sureties  for  contribution.  Furnold  v.  Bank  of  the  State,  44 
Mo.,  336. 

^  King  v.  Thompson,  9  Peters,  204. 

'  Green  v.  Biddle,  8  Wheat.,  i.  Upon  the  rescission  by  the  vendee  of  a  parol 
contract  for  the  sale  of  land,  the  compensation  to  which  he  is  entitled  is  the 
enhanced  value  of  the  land  from  the  permanent  improvements  made  upon  it  by 
him,  estimated  at  the  time  he  elected  to  avoid  the  contract,  and  to  be  re- 
imbursed the  taxes  paid  by  him  ;  but  not  for  insurance  incurred  while  he  was 
treating  the  property  as  his  own  ;  and  he  is  liable  to  account  for  reasonable 
rents.    Masson  v.  Swan,  6  Heisk,  450. 


§   521.  ALLOWANCE    FOR    IMPROVEMENTS.  749 

constantly  acted  upon  where  the  legal  title  is  in  one  person 
who  has  made  improvements  in  good  faith,  and  the  equi- 
table title  in  another  who  is  obliged  to  resort  to  a  court  of 
equity  for  relief.  The  court,  in  such  cases,  acts  upon  the 
principle  that  the  party  who  asks  equity  must  himself  be 
willing  to  do  what  is  equitable.  But  whether  expenditures 
made  by  the  vendee  in  permanent  improvements  in  good 
faith,  and  relying  upon  the  performance  of  the  agreement, 
can  be  recovered  back  from  the  vendor  who  has  failed  or 
been  unable  to  make  a  good  title,  or  whether  they  could 
be  made  a  lien  upon  the  premises  in  a  case  where  the  ex- 
penditures were  not  specified  or  demanded  by  the  contract, 
has  been  questioned.  Chancellor  Walworth  declined  to 
make  such  an  allowance ;  though  he  intimated  that  his  de- 
cision would  have  been  different  if  the  legal  title  was  in  the 
person  who  had  made  the  improvements,  and  the  equitable 
title  in  another  who  was  thus  compelled  to  resort  to  equity 
for  relief,  and  would  then  himself  be  required  to  do  equity.' 

'  Putnam  v.  Ritchie,  6  Paige  Ch.,  390.  In  this  case,  Chancellor  Walworth 
said  :  "  I  have  not,  however,  been  able  to  find  any  case,  either  in  this  country 
or  England,  wherein  the  court  of  chancery  has  assumed  jurisdiction  to  give 
relief  to  a  complainant  who  has  made  improvements  upon  land,  the  legal  title 
to  which  was  in  the  defendant,  where  there  has  been  neither  fraud  nor  acquies- 
cence on  the  part  of  the  latter,  after  he  had  knowledge  of  his  legal  rights.  I 
do  not  therefore  feel  myself  authorized  to  introduce  a  new  principle  into  the  law 
of  this  court,  without  the  sanction  of  the  legislature,  which  principle,  in  its  ap- 
phcation  to  future  cases,  might  be  productive  of  more  injury  than  benefit.  If  it 
is  desirable  that  such  a  principle  should  be  introduced  into  the  law  of  this 
State,  for  the  purpose  of  giving  the  bona  fide  possessor  a  lien  upon  the  legal 
title  for  the  beneficial  improvements  he  has  made,  it  would  probably  be  much 
better  to  give  him  a  remedy  by  action  at  law,  where  both  parties  could  have  the 
benefit  of  a  trial  by  jury,  than  to  embarrass  the  title  to  real  estate  with  the 
expense  and  delay  of  a  protracted  chancery  suit  in  all  such  cases."  But  in 
Bright  V.  Boyd,  i  Story,  478,  Judge  Story  animadverted  upon  the  doctrine  as 
follows:  "  It  appears  to  me,  speaking  with  all  deference  to  other  opinions,  that 
the  denial  of  ail  comijensation  to  such  bona  fide  purchaser,  in  such  a  case,  where 
he  has  manifestly  added  to  the  permanent  value  of  an  estate  by  his  meliorations 
and  improvements,  without  the  slightest  suspicion  of  any  infirmity  in  his  own 
title,  is  contrary  to  the  first  principtes  of  equity.  Take  the  case  of  a  vacant  lot 
in  a  city,  where  a  bona  fide  purchaser  builds  a  house  thereon,  enhancing  the 
value  of  the  estate  ten  times  the  original  value  of  the  land,  under  a  tide  appar- 
ently perfect  and  complete.  Is  it  reasonable  or  just  that,  in  such  a  case,  the 
true  owner  should  recover  and  possess  the  whole,  without  any  compensation 
whatever  to  the  bona  fide  purchaser .?  To  me  it  seems  manifestly  unjust  and  in- 
equitable thus  to  appropriate  to  one  man  the  property  and  money  of  another 
who  is  in  no  delault.  The  argument,  I  am  aware,  is  that  the  moment  the  house 
is  built,  it  belongs  to  the  owner  of  the  land  by  mere  operation  oi  law,  and  that 


750  COMPENSATION    AND    DAMAGES.  §   522. 

In  a  case  in  the  supreme  court  of  the  United  States,  ven- 
dees filed  a  bill  for  specific  performance,  the  legal  title  be- 
ing in  the  defendants.  The  contract  proved  was  uncertain 
as  to  the  person  in  whom  the  title  was  to  be  vested,  and  the 
condition  of  the  conveyance.  Specific  performance  was 
therefore  denied,  but  the  vendees  were  allowed  the  benefit 
of  their  expenditures,  and  the  premises  were  directed  to  be 
sold  to  repay  them.*  When  expenditures  have  been  made 
by  the  vendee,  not  only  in  good  faith  and  relying  upon  the 
fulfilment  of  the  contract  on  the  part  of  the  vendor,  but  in 
direct  compliance  with  the  vendee's  covenants,  the  vendor, 
who  is  unable  to  perform  the  contract,  cannot  recover  pos- 
session of  the  land  without  remunerating  the  vendee  for 
his  outlay.'  Where  some  improvements  had  been  made 
by  an  alleged  vendee,  not  such  as  an  ordinary  tenant  would 
be  likely  to  erect,  and  the  defendants  in  their  answer,  while 
denying  that  the  agreement  was  ever  made  as  claimed,  and 
asserting  its  invalidity  if  made,  announced  that  they  were 
ready  and  willing  to  contribute  their  proper  share  of  com- 
pensation for  said  improvements,  the  court  advised  a  de- 
cree that  it  be  referred  to  a  master  to  ascertain  and  report 
what  the  fair  allowance  was  that  would  meet  in  this  respect 
the  equity  of  the  case,  and  that  such  allowance  be  made." 
§  522.  In  case  of  part  performance. — Upon   decreeing 

he  may  certainly  possess  and  enjoy  his  own.  But  this  is  merely  stating  the 
technical  rule  of  law,  by  which  the  true  owner  seeks  to  hold  what,  in  a  just 
sense,  he  never  h^d  the  slightest  title  to,  that  is  the  house.  It  is  not  answering 
the  objection,  but  merely  and  dr}ly  stating  that  the  law  so  holds.  But  then, 
admitting  this  to  be  so,  does  it  not  furnish  a  strong  ground  why  equity  should 
interpose  and  grant  relief.''  I  have  ventured  to  suggest  that  the  claim  of  the 
bo7ia  fide  purchaser,  under  such  circumstances,  is  founded  in  equity.  I  think  it 
founded  in  the  highest  equity ;  and,  in  this  view  of  the  matter,  I  am  supported 
by  the  positive  dictates  of  the  Roman  law." 

'  King  v.  Thompson,  supra.  '  Gilbert  v.  Peteler,  38  Barb.,  488. 

'  Ackerman  v.  Ackerman,  24  N.  J.  Eq.,  315.  A.  having  entered  into  a  con- 
tract with  B.  to  sell  him  a  house  and  lot  in  a  town,  and  also  a  lot  in  the  coun- 
try, the  first  being  the  more  valuable,  and  A.  having  died,  it  appeared  that  the 
town  property  in  fact  belonged  to  A.'s  wife.  B.  had  made  permanent  improve- 
ments on  the  property,  but  offered  to  give  up  possession.  It  was  held  that  if 
an  account  were  taken,  the  rents  and  profits  up  to  the  time  of  the  decree  for 
the  surrender  of  the  property,  should  be  set  ofi  against  B.'s  improvements. 
Hoover  v.  Calhoun,  16  Gratt.,  109. 


§§  5^3>   5-4-  HOW    ASCERTAINED.  75 1 

specific  performance  of  a  verbal  contract  on  the  ground  of 
part  performance,  the  court  will  be  governed  by  the  same 
principles  in  adjusting  the  equities  of  the  parties  as  upon  a 
written  contract  valid  by  the  statute  of  frauds ;  and  if  the 
seller  is  not  able  fully  to  comply  with  the  contract,  the 
court  will  allow  the  buyer,  at  his  election,  to  have  the  con- 
tract specifically  performed  so  far  as  the  seller  can  perform 
it,  with  an  abatement  from  the  purchase  money,  or  com- 
pensation for  any  deficiency  in  the  title,  quantity,  or  other 
matters  touching  the  estate.'  But  the  court  cannot  give 
damages  against  the  defendant  for  an  independent  cause  of 
action  growing  out  of  a  contract  void  by  the  statute  of 
frauds.  An  existing  cause  of  action  in  equity  will  not  cre- 
ate and  secure  to  the  party  an  independent  cause  of  action 
which  would  not  exist  and  could  not  be  enforced  but  for 
the  equitable  action."" 

§  523.  Waiver  of  objection  to  jiu^isdiction. — The  defend- 
ant, by  not  taking  the  objection  by  answer  that  the  plain- 
tiff has  an  adequate  remedy  at  law,  waives  it  in  all  cases, 
except  those  of  such  purely  legal  character  as  that  the 
court,  from  its  peculiar  organization,  cannot  afford  relief. 
Where  B.  gave  A.  a  bill  of  sale  of  a  vessel,  under  an  agree- 
ment that  A.  should  reconvey  on  payment  by  B.  of  what 
he  owed  him,  and  A.,  after  waiting  a  reasonable  time  for 
the  payment  of  the  debt,  sold  the  vessel,  it  was  held  in  a 
suit  brought  by  B.  against  A.,  for  an  alleged  violation  by 
him  of  his  trust,  an  objection  to  the  jurisdiction  not  hav- 
ing been  taken  by  answer,  and  specific  performance  being 
impossible,  that  the  court  might  give  compensation  in 
damages." 

§  524.  How  ascertained. — The  usual  mode  of  determin- 
ing the  amount  of  compensation  or  damages  in  equity  is 
by  a  reference.*     If,  however,  the  case  is  such  as  to  require 

1  Harsha  v.  Reicl,  45  N.  Y.,  415.  2  jby^ 

^  Tenney  v.  State  Bank,  20  Wis.,  152.  See  McDonald  v.  Crockett,  2  Mc- 
Cord  Eq.,  139;  Cable  v.  Martin,  i  How.  Miss.,  558;  Ludlow  v.  Simond,  2 
Caines'  Cas.,  i. 

*  Where  a  reference  is  ordered  to  ascertain  the  amount,  the  money  should  be 


752  COMPENSATION    AND    DAMAGES.  §   525- 

a  jury  to  assess  the  damages,  or  to  make  that  the  more  ap- 
propriate course,  it  is  then  a  matter  of  convenience  and  dis- 
cretion whether  to  order  such  an  assessment  upon  an  issue 
quantiun  damnijicatus,  or  to  dismiss  the  bill  and  remit  the 
parties  to  a  trial  in  an  action  at  law."  But  it  is  not  the 
practice  to  direct  an  issue  in  any  case  in  which  the  court 
can  lay  hold  of  a  simple,  equitable,  and  precise  rule  to  as- 
certain the  amount  which  it  ought  to  decree/  Where  the 
contract  could  not  be  specifically  enforced  for  the  reason 
that  "  it  was  not  mutual,  fair,  just,  and  reasonable  in  all  its 
parts,"  and  the  complainant  was  deprived  of  the  benefit  of 
the  agreement  by  the  fraud  of  the  defendant,  the  court  de- 
creed a  return  of  the  money  paid,  with  interest,  without  an 
issue  quantum  datmiificatus^ 

§  525.  Measure  of  damages. — The  measure  of  damages 
where  the  title  has  failed  without  the  fault  of  the  vendor  is 
the  purchase  money  paid  and  interest."  If  the  vendor  re- 
fuses or  puts  it  beyond  his  power  to  convey,  it  is  the  differ- 
ence in  the  value  of  the  land  at  the  time  the  contract  ought 
to  have  been  performed,  and  what  was  agreed  to  be  paid,  if 
that  value  exceeds  the  price  mentioned   in  the  contract/ 

ordered  to  be  brought  into  court  for  the  party  entitled  to  it.  Stevenson  v.  Jack- 
son, 40  Mich.,  702. 

'  Milkman  v.  Ordway,  106  Mass.,  232,  per  Wells,  J. 

^  Pratt  V.  Law,  9  Cranch,  494.  ""  Rider  v.  Gray,  10  Md.,  282. 

*  Luckett  V.  Williamson,  37  Mo.,  388. 

'  Dustin  V.  Newcomer,  8  Ohio,  49;  Hall  v.  Delaplaine,  5  Wis.,  206.  In  the 
case  of  an  action  for  breach  of  contract :  "  The  law  regulating  the  damages  to 
be  recovered,  makes  a  distinction  between  cases  where  there  is  a  fraudulent 
breach  of  contract  and  those  where  the  breach  is  occasioned  by  some  unforeseen 
and  unavoidable  obstacle.  As  where  one  covenants  to  convey  a  good  title,  and 
it  is  afterward  discovered  that  he  does  not  -possess,  and  by  no  means  in  his 
power  can  procure,  such  a  title ;  or  the  wife  of  the  covenantor,  without  any  col- 
lusion, persuasion,  or  request  on  his  part,  refuses  to  join  in  the  deed.  In  cases  , 
of  this  kind,  when  the  covenantor  does  all  in  his  power  to  fultil  his  contract,  and 
without  any  fault  of  his  cannot  perform  it,  the  damages  to  be  recovered  against 
him  are  only  such  actual  and  immediate  losses  as  he  may  have  suffered,  such  as 
the  money  paid,  with  interest  thereon,  the  time  lost,  and  expenses  incurred  in 
examining  the  title,  conveyancing  expenses,  and  such  work  or  improvements  as 
he  may  have  made  upon  the  land  upon  the  faith  of  the  contract.  But  where  there 
is  a  wanton  or  dishonest  refusal  to  perform  the  contract,  or  where  the  cove- 
nantor, by  some  fraudulent  act  on  his  part,  renders  the  performance  impossible, 
as  when  by  collusion  with  his  wife,  or  by  request  on  his  part,  she  refuses  to  sign 
the  deed,  or  where  her  refusal  is  not  her  own  free  and  uncontrolled  act,  but 


§525.  MEASURE    OF    DAMAGES.  753 

Where  A.  contracted  to  convey  to  B.,  by  a  quit-claim 
deed,  an  undivided  share  of  real  estate  bound  by  a  judg- 
ment against  a  previous  owner,  which  he  failed  to  do,  on  a 
bill  filed  by  B.  for  specific  performance,  it  was  held  that  an 
equivalent  to  the  value  of  the  land  would  not  be  decreed 
without  providing  that  B.  should  first  pay  or  secure  his 
part  of  the  judgment  according  to  the  proportion  which 
the  share  he  contracted  to  purchase  bore  to  the  land  bound 
by  the  judgment/  A  money  compensation,  by  way  of 
abatement  from  the  price,  should  be  such  as  to  allow  the 
vendee  precisely  what  he  has  lost  by  reason  of  the  inability 
of  the  vendor  to  convey  the  land  as  agreed ;  that  is,  the 
money  and  the  land  conveyed  should  be  equivalent  to  the 
land  agreed  to  be  conveyed.'  A  suit  was  brought  to  en- 
force a  contract  to  assisfn  a  bond  of  the  State  for  the  con- 
veyance  of  land  situated  in  another  State,  against  the  con- 
tractor and  two  partners  residing  where  the  land  lay,  who 
took  an  assignment  of  the  bond  and  a  conveyance  of  the 
land  with   knowledge   of  the   plaintiff's  right.     After  the 


made  at  the  implied  or  actual  request  of  her  husband,  the  law  in  such  a  case 
awards  full  compensatory  damages,  and  permits  a  recovery  for  all  the  party  has 
lost  by  reason  of  the  default  of  the  other  party,  including  the  value  of  the  bar- 
gain and  all  injury  and  damage  he  may  have  suffered  by  reason  of  any  act  of 
his  made  upon  the  faith  of  the  broken  covenant."  Clayton,  P.  J.,  in  Burk  v. 
Serrill,  80  Pa.  St.,  413. 

'  Woodcock  v.  Bennett,  i  Cowen,  71. 

2  Harsha  v.  Reid,  45  N.  Y.,  415;  Woodbury  v.  Luddy,  14  Allen,  i.  In  this 
ease  the  court  said  :  "The  plaintiff  seeks  the  aid  of  a  court  of  equity  to  compel 
the  specific  performance  of  the  defendant's  contract  to  convey  land.  The  de- 
fendant is  unable  to  make  a  perfect  titl^;  and  the  court,  at  the  plaintiff's  elec- 
tion, will  compel  the  conveyance  of  so  much  as  the  defendant  can  convey,  and 
will  award  compensation  in  the  nature  of  damages  for  the  deficiency.  The  de- 
fendant has  not  undertaken  to  apportion  the  contract.  If  he  was  sued  at  law, 
the  whole  market  value  of  the  estate  would  be  the  measure  of  damages.  But 
dividing  the  estate  may  very  much  increase  the  proportionate  damages,  without 
any  corresponding  advantage  to  the  defendant.  By  making  the  election,  the 
plaintiff  undertakes  to  receive  what  the  defendant  never  agreed  to  give,  namely, 
a  partial  conveyance  of  the  estate  ;  and  equity  will  only  allow  this  on  the  con- 
dition that  the  defendant  shall  not  thereby  be  subjected  to  unreasonable  injury. 
The  plaintiff  in  effect  elects  to  take  satisfaction,  partly  in  land  and  partly  in 
money ;  and  if  he  is  allowed  to  do  this,  he  should  only  in  equity  be  allowed  to 
receive  the  fair  money  value  of  the  part  ot  the  estate  which  is  not  conveyed  to 
him.  In  the  adjudged  cases,  though  this  is  sometimes  called  damages,  it  is 
more  usually  spoken  of  as  an  equitable  compensation  for  the  value  of  that  which 
the  defendant  does  not  convey."     Per  Hoar,  J. 

48 


754  COMPENSATION    AND    DAMAGES.  §525- 

commencement  of  the  suit  one  of  the  partners  died.  It 
was  held  that  the  plaintiff  was  entitled  either  to  damages 
for  the  value  of  the  land  at  the  time  it  was  conveyed  to  the 
partners,  or  to  so  much  of  the  land  as  the  surviving  part- 
ner had  a  right  to  convey,  and  damages  for  the  residue. 
The  plaintiff  having  decided  to  take  the  land  in  part  pay- 
ment of  the  damages,  died,  leaving  his  real  estate  to  his 
executors.  It  was  held  that  they  could  only  recover  the 
land  by  a  bill  of  revivor ;  but  that  they  might  decline  to 
take  the  land,  and  have  compensation  against  both  defend- 
ants for  the  share  of  the  surviving  partner,  and  against  the 
contractor  for  the  share  of  the  deceased  partner.'  When 
the  vendor  cannot  make  a  good  title  to  the  whole  he  con- 
tracted to  sell,  if  the  vendee  insists  on  a  conveyance  of 
part,  he  must  pay  the  vendor  the  value  of  such  part  pro- 
portioned to  the  price  which  was  to  have  been  paid  for  the 
whole,  and  not  merely  in  proportion  to  the  number  of 
acres."  Estimating  the  value  of  the  deficiency  at  the  aver- 
age price  per  acre,  would,  in  many  cases,  be  unjust.  If 
there  are  buildings  on  the  land,  the  inquiry  should  be,  how 
much  more  was  agreed  to  be  paid  by  reason  of  the  sup- 
posed additional  quantity.^  But  if  the  land  contracted  for 
sale  is  of  uniform  value,  the  price  per  acre  would,  of 
course,  afford  a  proper  criterion  for  compensation  in  case 
of  an  excess  or  deficiency.     A.  sold  to  B.  all  his  "lands  ly- 


'  Pingree  v.  Coffin,  12  Gray,  288. 

'Jacobs  V.  Locke,  2  Ired.  Eq.,  286;  Chandler  v.  Geraty,  5  S.  C,  501.  But 
see  Stockton  v.  Union  Oil  &  Coal  Co.,  4  W.  Va.,  273. 

*  Wilcoxon  V.  Calloway,  67  N.  C,  463.  If  the  contract  has  been  in  part  per- 
formed, the  benefit  received  by  the  complainant  from  such  part  performance 
will  be  allowed  in  estimating  the  damages.  Taylor  v.  Reed,  4  Paige  Ch.,  561. 
As  a  general  rule,  when  a  person  can  only  partially  perform  a  contract  into 
which  he  has  entered,  he  must  respond  in  damages  to  the  extent  of  the  differ- 
ence in  value  between  that  which  the  other  party  receives  and  that  to  which  the 
contract  entitled  him.  And  this  is  found  by  taking  the  market  value  of  the 
whole  subject  of  the  contract.  Wetherbee  v.  Bennett,  2  Allen,  428.  But  this 
rule  is  not  universal ;  and,  in  the  case  of  an  incumbrance,  or  an  estate  conveyed 
with  covenants  of  warranty,  the  more  usual  measure  of  damages  for  the  breach 
of  the  covenant  against  incumbrances  has  been  the  market  value  of  the  incum- 
brance, where  this  was  capable  of  an  exact  estimate.  Eastbrook  v.  Hapgood, 
10  Mass.,  315. 


§   525-  MEASURE    OF    DAMAGES.  755 

ing  on  the  Miami  River,  one  tliousand  five  hundred  and 
thirty-three  and  one-third  acres,  as  by  patent  in  my  (his) 
name."  A  subsequent  survey  showed  the  tract  to  contain 
eight  hundred  and  seventy-six  acres  in  excess  of  the  quan- 
tity named.  The  heirs  of  the  vendee  having  filed  a  bill  for 
specific  performance  of  the  contract  of  sale,  the  court  de- 
creed a  conveyance  of  the  excess  to  the  vendee  on  his  pay- 
ing for  the  same  at  the  average  rate  per  acre  with  interest 
which  the  consideration  mentioned  in  the  contract  bore  to 
the  quantity  of  land  there  mentioned.' 

'  King  V.  Hamilton,  4  Pet.,  311. 


INDEX. 

[The  figures  refer  to  the  Sections.] 

ACCEPTANCE, 

of  proposition,  what  necessary  to  constitute,  135,  137,  138. 

where  it  changes  terms  of  offer,  136. 

right  of  party  to  withdraw  proposition,  134. 

not  required  where  the  title  depends  on  possession,  412. 

ACCIDENT, 

destruction  of  subject  matter  of  contract  by,  404, 

rule  as  to  liability  for  losses  by,  520. 

ACTION, 

equity  will  not  create  right  of,  when  none  exists  at  law,  13. 

party  restrained  from  bringing,  108,  and  note. 

ADMIRALTY, 

jurisdiction  in  cases  of  mistake  or  fraud,  360,  note. 

ADULTERY, 

of  wife  will  not  prevent  the  enforcing  of  articles  of  separation,  42. 

ADVERSE  CLAIMANTS, 

when  they  may  or  may  not  be  made  parties  to  suit,  56,  57. 

AGENT, 

parties  to  suit  where  contract  is  made  by,  84,  and  notes. 

when  liable  as  principal,  85,  86. 

averment  of  bill  when  contract  made  by,  92, 

incapacity  to  contract  may  be  objected,  124. 

contract  of  in  breach  of  trust  not  enforced,  164. 

who  competent  to  sign  memorandum  of  agreement  as,  242,  and 

notes,  243. 
relaxation  of  common  law  rule  as  to  authority,  243,  7iote. 
construction  of  written  authority,  243,  note. 
ratification  by  principal  of  agent's  act,  244. 
signing  of  agreement  by  agent,  245. 
false  representations  made  by,  306. 

deprived  of  benefit  obtained  through  fraud,  335,  and  note. 
contract  not  enforced  in  case  of  mistake,  2fi2>- 
See  Statute  of  Frauds. 


758  INDEX. 

GREEMENT, 

may  mean  a  substantial  performance,  i. 

precision  in  fulfilment  of  required  at  law,  i. 

when  terms  of  cannot  be  set  up  as  a  reason  for  refusing  to  fulfil,  i. 

to  insure  enforced,  32. 

for  renewal  of  lease  enforced,  ^6. 

of  husband  and  wife  for  separation,  42,  and  7iofe. 

to  refer  matters  to  arbitration  not  enforced.  44. 

distinction  between  otTer  and  agreement,  133. 

right  to  withdraw  offer,  134. 

what  essential  to  constitute  an  acceptance,  135. 

where  acceptance  changes  terms  of  offer,  136. 

material  omissions  from,  149,  160. 

presumption  as  to  omitted  terms,  150. 

immaterial  omissions,  153. 

inconsistent  or  ambiguous  stipulations,  157. 

must  not  have  been  improperly  obtained,  158. 

how  regarded  with  reference  to  its  fairness,  159. 

what  constitutes  equality  in,  158,  fiofe. 

to  purchase  land,  not  enforced  without  a  right  of  way,  169. 

when  conditional,  property  at  risk  of  vendor,  193. 

optional,  exception  to  rule  as  to  mutuality,  200. 

separate,  rule  in  relation  to,  428. 

right  of  wife  to  elect  whether  or  not  to  accept  performance  of,  505, 

noU. 
stipulation  that  defects  shall  not  be  subjects  of  compensation,  508. 
See  Contract. 
AMENDiMENT, 

by  plaintiff  when  contract  different  from  that  charged,  loi,  and  /lofe. 

of  bill,  where  plaintiff  admits  mistake,  383. 
See  Pleadings. 

ANNUITY, 

Agreement  to  grant,  20. 

ANSWER.     See  Pleadings. 

ARBITRATION, 

agreement  to  refer  matters  to,  not  enforced,  44. 
consequence  of  inequitable  refusal  by  party  to  refer  to,  44,  and  nofe. 
court  cannot  substitute  itself,  and  make  the  award,  148,  ?io^e. 
See  Award. 
ARTICLES.     See  Marriage  Articles  ;  Partnership  ;  Separation. 

ASSIGNOR  AND  ASSIGNEE, 

right  of  assignee  to  maintain  suit,  68. 

when  assignor  need  not  be  made  a  party,  68,  nofe. 

parties  to  bill  in  case  of  assignment,  69. 


INDEX.  759 

ASSIGNOR  AND  ASSIGNEE— Co;i^inued. 

right  of  assignees  of  mortgage  to  maintain  suit,  70. 

suit  by  assignee  of  note  for  purchase  money,  58,  noU. 

void  assignment,  74. 

liability  of  assignee  with  notice,  75. 

liability  of  assignee  of  equitable  title,  78. 

notice  to  vendor  of  agreement  of  vendee  to  assign  contract,  80. 

contract  of  assignees  in  breach  of  trust  set  aside,  164. 

AUCTION, 

insufficiency  of  memorandum  as  to  name  of  party,  145. 

what  memorandum  should  contain,  247. 

fraudulent  interference  with  sale  at,  343. 

right  of  vendor  to  stipulate  for  power  to  buy  property,  463,  nc^e. 

when  a  number  of  persons  may  unite  in  bidding,  344. 

vendee  misled  by  vendor,  362. 

mistake  of  auctioneer,  363. 

See  Public  Sale. 

AWARD, 

specific  performance  of,  45. 

railroad  company  compelled  to  complete  purchase  under,  45,  nofe. 

grounds  for  declining  to  enforce,  46. 

court  cannot  make,  148,  fiofe. 

when  mistake  in  corrected,  388. 

See  Arbitration, 

BAIL, 

when  defendant  held  to,  writ  of  ne  exeat  not  granted,  120. 

See  Equitable  Bail. 

BANKRUPTCY, 

contract  of  assignees  in  breach  of  trust  set  aside,  164. 

of  plaintiff,  a  defence,  433. 

See  Insolvency. 

BILL, 

averment  of  mistake,  382. 

amendment  where- party  assents  to  a  parol  variation  of  agreement, 

383- 
offer  to  perform  may  be  made  in,  447. 
must  state  facts  entitling  party  to  compensation,  500. 
See  Cross  Bill  ;  Pleadings. 

BOND, 

for  title,  vendor  compelled  to  execute,  14,  tiote, 

may  be  reformed  in  case  of  mistake,  360,  note. 

BOUNDARY, 

parol  agreement  for  settlement  of,  278. 


760  INDEX. 

BUILDING  CONTRACTS, 

not  in  general  specifically  enforced,  27. 

where  it  is  agreed  that  a  lease  shall  contain  covenants  to  build,  27. 

enforced  in  Scotland,  27. 

rule  in  relation  to  regarded  unfavorably,  27,  note. 

enforced  when  plaintiff  cannot  be  compensated  in  damages,  28. 

distinction  between  and  contract  of  sale  with  stipulation  to  erect 
building,  29. 

effect  of  part  performance  of,  30. 

to  be  enforced,  court  must  have  jurisdiction  over  subject  of  con- 
tract, 30. 
BURDEN  OF  PROOF.     See  Evidence  ;  Fraud. 

CAIRNS'  ACT, 

language  and  object  of,  518,  and  note. 

CAVEAT  EMPTOR, 

is  ap]:)licable  to  all  contracts  of  purchase,  418, 

CHAMPERTY  AND  MAINTENANCE, 

contracts  tending  to  promote,  are  illegal,  217. 

CHANCERY.     See  Equity. 

CHARTER, 

of  corporations,  how  construed,  220. 

when  other  means  than  those  prescribed  by,  may  be  adopted,  221. 
See  Railroad  Company. 
COMMON  LAW, 

contracts  illegal  at,  213,  214,  217. 

relaxation  of  rule  as  to  agent's  authority,  243,  note. 

performance  at,  to  take  case  out  of  statute  of  frauds,  259. 
See  Law. 
COMPANY, 

liability  upon  formation  of  new  company,  77. 

liability  under  contract  of  its  promoters,  81. 

contract  of  promoters  must  have  been  adopted,  82. 

contract  of  promoters  must  be  capable  of  performance,  83. 

COMPENSATION, 

when  performance  with  meant,  i. 

where  defendant  has  put  i^  out  of  his  power  to  perform,  125. 

in  case  of  liability  of  lessee  to  forfeiture,  177. 

right  of  vendee  to  partial  performance  with,  203,  499,  505. 

encroachment  entitling  purchaser  to,  403. 

equity  governed  by  in  cases  of  conditions,  435. 

when  it  can  be  made,  delay  in  fulfilment  not  a  defence,  436. 

stipulation  for,  with  right  to  rescind,  498, 

rule  of,  between  vendor  and  vendee,  499. 


INDEX.  761 

COMPENSATION— O;;////;?/^^. 

grounds  must  be  alleged  in  pleading,  500. 

at  what  time  granted,  500. 

power  of  court  restricted,  501. 

when  vendor  not  held  to  exact  fulfilment,  502. 

defects  which  may  be  subjects  of,  503. 

not  allowed  where  deficiency  material,  504. 

where  residue  can  only  be  shown  by  parol,  505,  note. 

when  vendee  not  entitled  to  claim,  506. 

where  it  is  incapable  of  ascertainment,  507.. 

may  be  in  the  shape  of  an  indemnity,  507. 

agreement  that  defects  shall  not  be  subjects  of,  508. 

how  affected  by  nature  of  sale,  509. 

where  interests  of  third  person  may  be  affected,  510. 

in  cases  where  the  wife  refuses  to  join  in  the  conveyance,  511. 

where  real  estate  is  purchased  jointly,  513. 

rule  as  to  interest,  rents,  and  profits,  519. 

who  to  pay  for  repairs  and  losses,  520. 

right  of  vendee  to  be  allowed  for  improvements,  521. 

in  case  of  part  performance  of  verbal  agreement,  522. 

how  ascertained,  524. 

See  Damages. 

COMPLAINT.     See  Bill  ;  Pleadings. 

COMPROMISE, 

under  what  circumstances  enforced,  43,  and  note. 

in  settlement  of  family  disputes,  43. 

when  fresh  suit  lequired  to  enforce,  43. 

mistake  of  law  in,  353. 

not  affected  by  subsequent  legal  decision,  356. 

CONCEALMENT, 

of  facts  without  fraud,  may  be  a  defence,  161,  299. 
of  a  material  fact,  may  amount  to  a  misrepresentation,  298. 
purchaser  not  bound  to  communicate  what  may  increase  value  of 
property,  302. 

CONDITION, 

non-performance  of,  may  constitute  a  defence,  434,  and  note. 
precedent,  when  breach  of  relieved,  435. 
subsequent,  relief  in  case  of,  437. 

CONDITIONAL   AGREEMENT.     5^^  Agreement. 

CONSIDERATION, 

agreement  of  husband  and  wife  for  separation,  must  have  been 

founded  on,  42. 
good  against  husband,  when  good  against  his  creditors,  42. 


762  INDEX. 

CONSIDERATION- C^///^////^^/. 

compromise  of  doubtful  claim,  43. 

averment  of,  in  bill,  95. 

must  be  expressed,  or  be  capable  of  ascertainment,  146. 

method  of  ascertaining  may  be  material,  147. 

when  ascertained  by  court,  148. 

in  contract  of  trustees  must  be  equal  to  value  of  property,  164. 

mere  inadequacy  of,  not  a  defence,  i  79. 

how  inadequacy  of,  ought  to  be  considered,  180. 

inadequacy  of,  by  the  Roman  law,  179,  note. 

deed  set  aside  for  insufficient,  180,  ncte. 

distinction  between  inadequacy  and  excess,  181. 

what  to  be  shown  when  inadequacy  is  relied  on  by  defendant,  182, 
and  7iotes. 

when  excess  of,  aground  for  relief,  183. 

inadequacy  of  bid  at  public  sale,  184,  and  7iotes. 

with  reference  to  what  time,  inadequacy  to  be  determined,  185,  and 
nc4e. 

in  the  absence  of,  contract  not  enforced,  186. 

distinction  between  executory  and  executed  contract  with  reference 
to,  186. 

when  a  gift  of  real  estate  will  be  upheld,  187. 

what  will  constitute,  18S. 

nieanmg  of  failure  of,  189. 

personal  property  sold  must  be  in  existence,  and  answer  the  de- 
scription, 190. 

failure  of  part  of  an  entire  arrangement,  190,  7iote. 

cannot  be  shown  that  less  valuable  than  was  supposed,  190,  note. 

loss  from  delay  in  completing  contract,  192. 

risk  where  the  contract  is  conditional,  193. 

when  vendee  must  bear  losses,  194. 

tern)ination  of  interest  after  conniiencenient  of  suit,  195. 

of  love  and  affection,  validity  of,  182,  187. 

where  it  is  unlawful,  211,  213,  214,  215,  216,  217. 

statement  of,  in  memorandum  of  agreement,  235,  7iote. 

verbal  agreement  without,  void  by  statute  of  frauds,  256. 

release  of  right  to  dower  is,  269,  note. 

insufficiency  of,  may  be  evidence  of  fraud,  327. 

importance  of  inquiry  as  to,  on  question  of  fraud  or  mistake,  328. 

where  it  is  the  doing  of  something  in  the  future,  390,  391. 

parol  agreement  to  cancel  contract,  must  be  supported  by,  491. 

CONTRACT, 

meaning  of  specific  performance  of,  i. 
performance  of,  not  enforced  at  law,  i. 


INDEX.  ']6'^ 

CO^IKkQT— Continued. 

origin  of  specific  enforcement  of,  3. 

when  specific  performance  of  decreed,  6,  11. 

where  another  instrument  is  required  to  carry  it  out,  7,  note. 

may  be  enforced  notwithstanding  a  possible  remedy  at  law,  10. 

may  be  set  up  as  a  defence  in  another  action,  11,  note. 

sufticient  for  enforcing,  that  justice  will  not  otherwise  be  done,  12. 

concerning  real  estate,  most  frequent  ground  of  jurisdiction,  14. 

of  sale,  form  of  not  important,  14. 

abandonment  of,  and  vendor  remaining  in  possession,  15,  note. 

concerning  personal  property,  not  in  general  enforced,  16. 

where  it  is  partly  in  relation  to  the  delivery  of  personal  property,  16. 

for  specific  delivery  of  goods,   17, 

for  sale  of  stock,  19. 

sale  of  shares  in  company,  19. 

to  convey  real  estate,  and  transfer  shares,  19. 

in  relation  to  debts,  20,  and  note. 

to  borrow  or  lend  money,  or  to  give  security  for  a  debt,  20. 

to  grant  an  annuity,  or  to  release  land  from  lien  of  mortgage,  20. 

parol,  for  mortgage  of  personal  property,  20,  note. 

to  pay  liquidated  damages,  22. 

giving  option  to  do  an  act  or  pay  money,  23. 

to  build,  not  in  general  enforced,  27. 

to  build,  and  sale  subject  to  direction  of  building,  distinction,  29. 

for  personal  services,  not  in  general  enforced,  2,Z- 

when  revocable,  not  enforced,  34. 

for  a  partnership,  enforced,  34. 

concerning  expectancies,  rule  as  to,  37. 

verbal,  depending  on  future  event,  37,  note. 

concerning  expectancies  enforced  with  caution,  38. 

in  relation   to   expectancy  can   only   be    enforced   in   life-time   of 

party,  39. 
to  dispose  of  property  by  will,  41. 
foreign,  jurisdiction  of  equity  over,  48. 

not  enforced  when  incapable  of  being  controlled  by  court,  49. 
parties  to  suit  where  a  new  contract  has  been  substituted,  67. 
depending  upon  learning,  skill,  or  solvency  of  party,  72. 
of  promoters  of  public  company,  must  have  been  adopted  by  com- 
pany, 82. 
of  promoters,  must  be  capable  of  performance  by  company,  83. 
by  agent,  parties  to  suit  in  case  of,  84,  86. 
death  of  a  party  to,  who  was  its  inducement,  87. 
averment  of,  in  bill,  93. 
injunction  restraining  the  violation  of,  109,  and  notes. 


764  INDEX. 

CONTRACT— Continued. 

of  wife,  when  she  is  entitled  to  specific  performance  of,  123,  and 

of  lunatic,  when  binding,  123,  no^e. 

may  be  fulfilled  in  substance,  128,  129. 

where  subject  matter  of  is  divisible,  130. 

where  it  is  in  the  alternative,  131. 

non-conclusion  of,  132,  <?/  se(/. 

at  what  time  deemed  complete,  138. 

may  consist  of  a  representation,  139, 

incompleteness,  uncertainty,  and  unfairness  of,  141,  et  seq. 

court  cannot  change,  and  then  enforce,  147,  note. 

of  what  elements  it  consists,  151,  note. 

of  trustees  in  breach  of  trust,  not  enforced,  164. 

not  rendered  unfair  by  subsequent  unforeseen  events,  165. 

enforced  where  uncertainty  in,  is  afterward  removed,  167, 

for  sale  of  reversion,  hardship  in,  1 78. 

inadequacy,  absence,  or  failure  of  consideration,  179,  et  seq. 

time  of  completion  where  property  is  sold  by  order  of  court,  191. 

rule  as  to  mutuality,  196,  et  seq. 

illegality  of,  as  a  defence,  207,  et  seq. 

of  corporation,  when  ultra  vires,  219,  et  seq. 

gaming,  unlawful,  217,  331. 

when  usurious  not  enforced,  216,  331. 

statute  of  frauds  in  relation  to,  228,  et  seq. 

given  under  compulsion,  333. 

parol  variation  of,  in  case  of  alleged  mistake,  374,  379. 

must  be  enforced  in  its  entiret}',  3S9. 

in  relation  to  something  to  be  done  in  the  future,  not  enforced,  390. 

enforced  by  compelling  execution  of  deed,  391. 

must  be  enforced  in  respect  to  both  parties,  392, 

whether  entire  or  divisible,  how  determined,  393. 

when  deemed  entire,  394. 

proof  of  entirety  of,  395. 

when  regarded  as  divisible,  396. 

may  be  enforced  as  to  distinct  right,  397,  398,  399, 

substantial  defect  in  subject  of,  a  defence,  400,  et  seq. 

open  and  wrongful  violation  of,  bars  specific  performance,  453. 

substitution  or  rescission  of,  by  consent,  484,  489,  494. 

efi'ect  of  bringing  in  new  party,  485.   ' 

requisites  of  new  contract  to  work  a  rescission  of  the  old  one,  486, 

487. 
stipulations  to  change  terms  of,  488. 
rescission  of  how  proved,  490. 


INDEX.  765 

CONTRACT— C^;///;/?/^^. 

parol  agreement  to  cancel  must  be  supported  by  a  consideration,  491. 

when  rescinded  by  parol,  must  be  entire  abandonment,  492. 

when  abandonment  of  presumed,  493. 

agreement  that  it  shall  be  void  under  certain  circumstances,  495. 

waiver  of  right  to  rescind,  497. 

agreement  for  compensation  and  right  to  rescind,  498. 

power  of  court  to  change  terms  of,  restricted,  501. 
See  Agreement  ;  Foreign  Contracts. 
CONVEYANCE,     See  Deed  ;  Voluntary  Conveyance. 
CORPORATION, 

agreement  to  transfer  shares  in,  19. 

duty  imposed  on  enforced  by  mandamus,  49,  note. 

hardship  to  individual  members  of  not  a  defence,  171. 

when  performance  by  is  ultra  vires,  219. 

distinction  between,  and  private  individuals  as  to  the  right  to  make 
contracts,  219. 

how  powers  of  to  be  determined,  220. 

may  adopt  means  not  prescribed  by  charter,  221. 

contracts  of,  presumed  valid,  222. 

when  contract  of  void,  223. 

acts  prohibited  by  implication,  224,  225,  note. 

when  it  cannot  avail  itself  of  the  defence  oi  tdtra  vires^  226. 

may  be  compelled  to  repay  money  advanced,  227. 

principle  of  part  performance  extends  to  contracts  of,  260. 

responsible  for  acts  of  agent,  306. 

party  committing  fraud  against,  cannot  set  up  fraud  in  defence  to 
contract  with,  330,  7iote. 

mistake  in  agreement  for  transfer  of  shares  in,  368,  7iote. 

COURTS, 

of  United  States,  equity  jurisdiction  of,  how  derived,  6,  Jiote. 

COVENANT, 

for  renewal  of  lease,  enforced,  36. 

frequent  breaches  of,  not  enforced  by  injunction,  49. 

violation  of,  in  separation  deeds  restrained,  114. 

restricting  use  of  land,  breach  of,  enjoined,  X15. 

in  partial  restraint  of  trade,  115,  note. 

not  implied  in  conveyance  of  real  estate  in  New  York,  150,  note. 

to  convey  a  good  title  does  not  import  a  warranty  deed,  150,  note. 

created  by  words  "grant,  bargain,  and  sell,"  150,  note. 

when  stringent,  party  may  elect  to  rescind,  169. 

right  of  lessor  to  insist  on,  452. 

when  breach  of,  excused,  454. 


"J^^  INDEX. 

CREDITORS, 

contract  for  mortgage  may  be  enforced  against,  58. 

of  deceased  vendor  may  bring  suit,  62. 

statutes  as  to  fraud  against,  339. 

contract  in  fraud  of,  not  enforced,  340. 

when  conveyance  void  as  against,  341,  and  note. 
See  Debts  ;  Judgment  Creditors. 
CROSS  BILL, 

when  defendant  must  file,  100. 

difference  between,  and  bill,  100. 
what  it  ought  to  contain,  100,  note. 
DAMAGES, 

attempt  to  recover  at  law  restrained  in  equity,  i. 

cannot  in  general  be  obtained  where  specific  performance  is   de- 
creed, 5. 

in  relation  to  acts  not  admitting,  of  specific  performance,  5. 

recovery  of,  a  bar  to  a  suit  for  specific  performance,  5,  note. 

in  England,  in  case  plaintiff  fails  in  his  suit  in  equity,  5,  note. 

concurrent  remedy  in,  will  not  prevent  specific  peiformance,  10. 

liquidated,  contract  to  pay,  22. 

liquidated,  may  be  treated  as  a  penalty,  23. 

when  stipulation  in  lease  regarded  as  liquidated  damages,  24. 

where  stipulations  are  protected  by  a  penal  sum,  26. 

for  non-performance  of  building  contract,  28. 

liquidated,  under  agreement  not  to  set  up  trade,  35. 

in  relation  to  farm  work  not  ascertainable  by  court,  49. 

where  suit  is  against  heirs  and  for  specific  performance,  90. 

party  left  to,  when  contract  uncertain,  152,  note. 

measure  of,  where  wife  refuses  to  lease  her  dower,  511,  7iote. 

allowance  of,  in  equity  how  regarded,  514. 

only  given  in  equity  as  ancillary  to  other  relief,  515,  516. 

where  defendant  has  deprived  himself  of  power  to  fulfil,  517. 

'language  and  object  of  Sir  Hugh  Cairns'  act,  518,  and  iiote. 

where  objection  to  jurisdiction  is  waived,  523. 

mode  of  ascertaining,  524. 

measure  of,  upon  failure  of  title,  525. 

See  Compensation. 
DEATH, 

of  party  to  contract  who  was  its  inducement,  87. 
DEBTS, 

contract  in  relation  to,  20,  and  note. 
contract  to  borrow  or  lend  money  or  give  security,  20. 
agreement  to  release  land  from  lien  of  mortgage,  20. 
See  Creditors. 


INDEX.  1^1 

DECREE, 

parties  to  suit  in  case  of  sale  of  property  under,  71. 

when  not  set  aside  for  defects  in  petition,  90,  note. 

recital  in,  that  dismissal  of  bill  is  without  prejudice,  108,  note. 

injunction  frequently  takes  the  form  of,  109. 

DEED,  ^  ^  , 

grantor  compelled  to  furnish,  when  previous  deed  lost  or  destroyed, 

4,  note. 
wife  refusing  to  execute,  under  agreement  of  her  and  her  husband 

to  convey  her  land,  37,  note. 
of  separation  of  husband  and  wife,  42. 
without  consideration  not  enforced,  186,  note. 
when  void  as  against  creditors,  341,  and  note. 
reformation  of,  in  case  of  mistake,  360,  note,  369,  370,  371. 
reformation  of,  in  action  of  ejectment  not  necessary,  370,  note. 
compelling  execution  of,  where  it  is  stipulated  to  do  something  in 

the  future,  391. 
warranty,  not  necessarily  required  by  covenant   to  convey  a  good 

title,  150,  note. 
set  aside  for  insufficient  consideration,  t8o,  note,  182,  note. 
of  corporation,  when  not  binding,  223,  note. 
effect  of  false  recital  in,  330. 

contract  rendered  binding  by  acceptance,  239,  note. 
of  partnership,  execution  decreed,  34. 
voluntary,  with  a  view  to  a  family  settlement,  40,  note. 
with  full  covenants,  when  vendee  not  entitled  to,  150,  note. 
statute  of  New  York  in  relation  to,  130,  note. 
of  dwelling-house,  what  passed  by  it,  150,  note. 
meaning  of  agreement  to  give  a  good  deed,  414. 
failure  to  prove  execution  of,  a  defence,  433. 
must  be  delivered  before  payment  can  be  compelled,  444. 
must  be  tendered  before  bringing  suit,  447,  note. 
who  to  prepare  and  tender,  448. 
when  it  need  not  be  tendered,  450. 
objection  to,  must  be  made  promptly,  450,  note. 

DEFECTS, 

when  obvious,  will  not  excuse  performance,  317,  401. 

encroachment  on  land  sold,  403. 

liability,  or  right  restricting  enjoyment  of  property,  405. 

when  not  a  defence,  406. 

in  title,  waiver  of  by  vendee,  424. 

agreement  that  they  shall  not  be  subjects  of  compensation,  508, 

DEMAND, 

of  performance,  rule  in  relation  to,  445,  446,  and  notes. 


ySS  INDEX. 

DEMURRER.     See  Pleadings. 
DEVISE.     See  Will. 

DISCRETION, 

of  court  in  decreeing  specific  performance,  6. 

the  enforcement  of  awards,  46. 
DIVISION    LINE.     See  Boundary. 
DONOR  AND  DONEE.     See  Gift. 
DOWER, 

when  refusal  of  wife  to  release,  will  not  avail  as  a  defence,  104. 

inchoate  right  of,  deemed  an  incumbrance,  410. 

compensation  where  wife  refuses  to  release  her  right,  511. 

abolished  by  statute  in  Indiana,  511,  noU. 
See  Husband  and  Wife. 
DRAFTSMAN, 

mistake  by,  in  written  instrument  corrected,  371. 

DURESS, 

is  a  personal  privilege,  159,  no^e. 
contract  given  under,  not  enforced,  ;^;^;^. 

ENCROACHMENT, 

when  it  entitles  party  to  compensation,  403. 

EQUITABLE   BAIL, 

w'hen  plaintiff  has  a  right  to,  118,  nofe. 

EQUITY, 

main  ground  of  jurisdiction  of,  in  specific  performance,  i. 

has  regard  to  substance  of  agreement,  i. 

may  enforce  remedy  which  is  lost  at  law,  i. 

when  it  will  restrain  recovery  of  damages  at  law,  i. 

superiority  of  remedy  in,  2. 

will  not  carry  out  contract  in  every  case,  2,  fwfe. 

power  of  court  of,  4. 

may  compel  a  conveyance  though  title  to  land  in  question,  4,  nofe. 

rule  as  to  awarding  damages,  and  specific  performance  in  relation  to 

same  matter,  5. 
jurisdiction  of  U.  S.  courts,  and  in   Maine  and   Massachusetts,  6, 

note. 
will  not  aid  party  who  has  a  complete  remedy  at  law,  9. 
possible  remedy  at  law  will  not  defeat  jurisdiction,  10. 
will  not  create  a  right  of  action,  13. 
contracts  which  it  will  not  enforce,  27,  ;^^,  49, 
jurisdiction  over  foreign  contracts,  48. 
power  to  award  damages,  514,  et  seq. 


INDEX.  769 

EVIDENCE, 

burden  of  proof  where  illegality  of  contract  is  alleged,  208. 

b)'  party  objecting  to  contract  of  corporation,  222. 

of  parol  agreement  to  take  case  out  of  statute  of  frauds,  265,  291. 

admissible  to  show  what  passed  at,  and  before  execution  of,  writing, 

311,  note. 
burden  of  proof  where  fraud  is  alleged,  321. 
of  fraud  in  written  instrument,  323. 
admissibility  of  oral  declarations,  325,  note. 
of  fraud  from  insufficient  consideration,  327, 
parol,  mistake  may  be  shown  by,  349  and  note,  374,  379. 
what  required  to  show  mistake  in  written  instrument,  380. 
when  mistake  presumed,  381, 

assent  of  plaintiff  to  agreement  varied  by  parol,  383. 
of  parol  agreement  to  rescind  contract,  386. 
of  entirety  of  contract,  395. 

of  intention  of  parties  as  to  time  of  performance,  459,  460,  462, 
parol,  to  divest  title,  490,  note. 

See  Presumptions. 

EXCHANGE, 

of  lands,  specific  performance  of  parol  agreement  for,  279. 

EXECUTION, 

parties  to  suit  in  case  of  sale  of  property  on,  7. 
EXECUTORS  AND  ADMINISTRATORS, 

superseded  executor  need  not  be  party  to  bill,  62,  note. 

parties  to  suit  by,  to  foreclose  lien  for  purchase  money,  62,  note. 

when  administrator  must  be  party  to  suit  by  heirs  of  vendee,  d^^, 

note. 
restrained  from  mismanaging  assets  of  estate,  106. 

EXPECTANCIES, 

rule  as  to  contracts  concerning,  37. 

caution  exercised  in  enforcing  contracts  in  relation  to,  38. 

contract  in  relation  to  only  enforceable  in  lifetime  of  party,  39. 

FAMILY  SETTLEMENT, 

voluntary  conveyance  with  a  view  to,  40,  note,  187. 

compromise  of  family  disputes,  43. 

may  be  enforced  by  beneficiary,  196,  note. 

voluntary  settlement  presumptive  evidence  of  fraud,  342. 

FELONY, 

of  plaintiff  a  defence,  433. 

FOREIGN  CONTRACTS, 

when  jurisdiction  over  exercised,  48. 

must  satisfy  terms  of  fourth  section  of  statute  of  frauds,  48. 

relief  in  case  of,  extends  to  contracts  concerning  land,  48. 

49 


770  INDEX, 

FOREIGN  CO  NT  R  ACTS— Confhiued. 

cannot  be  specifically  enforced  abroad,  48. 

exceptions  to  rule  in  relation  to,  48,  no/e. 

court  in  enforcing  only  acts  on  person  of  defendant,  48,  nofe. 

FORFEITURE, 

of  contract  of  sale  not  enforced,  24,  nofe. 

relief  against  in  case  of  covenant  to  repair,  31. 

liability  to  a  defence,  177. 

exception  to  rule  in  case  of,  177. 

of  charter  by  railroad  company,  a  defence  to  land-owner,  223,  uofe. 

not  favored  in  equity,  435. 

party  waiving  condition  cannot  insist  on,  449. 

proof  where  acts  of  plaintiff  are  relied  on,  455. 

not  favored  in  equity,  435. 

See  Penalty. 
FRAUD, 

to  be  alleged  in  bill  when  relied  on  by  plaintiff,  88,  fio^e. 

contract  must  be  free  from,  158. 

how  defence  of  illegality  of  contract  differs  from,  209. 

written  agreement  prevented  by,  249. 

principle  on  which  it  takes  case  out  of  statute  of  frauds,  249,  nofe. 

when  property  obtained  by,  statute  of  frauds  not  a  defence,  255. 

doctrine  of  part  performance  based  upon  idea  of,  260,  261,  fw/e. 

may  be,  by  misrepresentation  of  material  fact,  293,  and  noU. 

inducing  a  person  to  execute  an  instrument,  294,  fio^e. 

is  cause  for  rescinding  agreement,  293  and  /wU',  300. 

by  concealment  of  insolvency,  298. 

by  false  statements  made  ignorantly,  305,  no^e. 

how  regarded  in  equity,  320. 

burden  of  proof,  321. 

how  it  may  be  divided,  322. 

contract  tainted  with,  not  specifically  enforced,  322,  note. 

evidence  of,  in  written  instrument,  323. 

fraudulent  omissions  from  writing,  324. 

fraudulent  use  of  written  in<;trument,  325. 

third  person  affected  by,  326. 

may  appear  from  insufiiriency  of  consideration,  327. 

importance  of  inquiry  as  to  value,  328. 

of  vendor,  relieved  against,  329. 

gaming  contracts,  331. 

usurious  contracts,  332. 

agreements  entered  into  through  compulsion,  ^^^. 

trust  implied  in  case  of,  334. 

preventing  what  was  intended  for  the  benefit  of  another,  335. 


INDEX.  77T 

FRAUD — Continued. 

seeking  to  take  advantage  of  a  fraudulent  transaction,  T^-^d. 

who  may  complain  of,  337. 

when  judgment  set  aside  for,  338. 

against  creditors,  statutes  relative  to,  339. 

contracts  entered  into  to  defraud  creditors,  340. 

when  voluntary  conveyance  fraudulent,  341,  and  note. 

validity  of  voluntary  conveyance  as  against  subsequent  purchaser, 

342. 
in  sales  at  auction,  343. 
parties  uniting  to  buy  at  auction,  344. 
in  proceeding  at  law,  ground  for  an  injunction,  345. 
party  may  rescind  contract  for,  346. 
by  debtor  against  judgment  creditor,  346,  note. 
waiver  of,  by  party  injured,  347. 
ignorance  of  law  may  be  an  ingredient  of,  355. 
jurisdiction  of  courts  of  admiralty  in  cases  of,  360,  note. 

FRAUDS.     See  Statute  of  Frauds. 

GAMING  CONTRACTS, 

made  illegal  by  statute,  217. 

cannot  be  enforced,  331. 

suit  may  be  maintained  for  cancellation  of,  217,  331. 

GIFT, 

by  parent  to  child,  in  consideration  of  support,  182,  271. 

of  real  estate  when  enforced,  187. 

as  between  father  and  child,  evidence  of  must  be  positive,  187,  note. 

when  possession  of  donee  constitutes  part  performance,  271. 

GOODS, 

rule  as  to  contract  for  specific  delivery  of,  17. 
where  they  are  wrongfully  detained,  17,  and  note. 
See  Personal  Property. 

GOOD  WILL, 

rule  as  to  sale  of,  35. 

disclosure  of  trade  secret  by  seller  restrained,  35. 

setting  up  trade  in  violation  of  agreement  enjoined,  35,  note. 
See  Trade. 
GRANTOR.     See  Vendor  and  Vendee. 

GUARDIAN  AND  WARD, 

neglect  of  guardian  to  plead  statute  of  frauds,  103,  note. 
incapacity  of  guardian  to  contract  may  be  objected,  124. 
dealings  between,  scrutinized,  313,  Jtote. 


7/2  INDEX. 

HARDSHIP, 

contract  must  be  free  from,  158. 

when  in  contract,  greater  degree  of  to  be  shown,  168,  172. 
when  in  general  a  defence,  169. 
mere  hardness  of  bargain  not  an  objection,  170. 
to  individual  members  of  a  corporation,  not  a  defence,  171. 
where  it  is  insisted  on  as  to  construction  of  contract,  172. 
must  have  existed  at  date  of  contract,  173. 
when  occasioned  by  defendant,  not  a  defence,  174. 
where  it  will  arise  from  literal  performance,  175. 
when  caused  by  plaintiff,  176. 
liability  to  forfeiture,  177. 

in  the  case  of  contract  for  sale  of  reversion,  178. 
HIRING  AND  SERVICE.     See  Personal  Services. 

HISTORY, 

of  jurisdiction  of  equity  in  specific  performance,  3. 

HUSBAND  AND  WIFE, 

where  under  agreement  to  convey  wife's  land,  she  refuses  to  exe- 
cute deed,  37,  iiote^  127  and  Jiotes,  511. 

objection  to  suit  that  wife  did  not  unite  in  contract,  [04. 

when  refusal  of  wife  to  release  her  dov/er,  not  a  defence,  104. 

agreements  of,  for  separation,  42. 

violation  of  covenants  in  separation,  deed  restrained,  114. 

mere  understanding  between,  incapable  of  being  enforced,  141,  note. 

when  both  necessary  parties,  66. 

when  wife  may  maintain  suit,  66. 

wife  of  surviving  partner  need  not  be  made  a  party,  66. 

rights  and  liabilities  of  wife  under  statutes,  66,  7iote. 

wife  bound  to  the  extent  of  her  separate  property,  66. 

when  wife  entitled  to  specific  performance  of  her  contract,  123,  and 
Jtote. 

parol  agreement  between,  enforced,  262,  ?iote. 

release  of  right  of  dower,  a  valuable  consideration,  269,  note. 

possession  of  land  by  wife  not  a  part  performance,  272,  note. 

right  of  wife  to  elect  whether  to  accept  performance  of  ante-nuptial 
agreement,  1^05,  tiote. 

compensation  where  wife  refuses  to  join  in  conveyance,  511. 

IGNORANCE, 

of  law,  when  relieved  in  equity,  355. 

ILLEGALITY, 

contract  affected  with,  cannot  be  enforced,  207,  and  notes. 

must  be  shown  by  party  taking  objection,  208. 

in  what  respect  defence  differs  from  that  of  fraud,  209. 


INDEX.  "J"]-^ 

I LLEGALIT  Y— a?;;/-/;?//^^. 

inquiry  as  to  relative  delinquency  of  parties,  210. 

in  respect  to  the  consideration,  21 1,  214. 

exception  to  rule  as  to  contracts  prohibited  by  statute,  210,  note. 

act  valid,  though  growing  out  of  an  illegal  contract,  212. 

contracts  against  public  policy,  213. 

contracts  in  violation  of  law,  215. 

agreements  affected  with  usury,  216. 

gaming  and  wagering  contracts,  217,  331. 

rule  where  goods  are  sold  to  be  used  for  an  unlawful  purpose,  217. 

note. 
in  the  case  of  fiduciary  relations,  218. 

IMPROVEMENTS, 

when  covenant  to  make,  enforced,  31. 

agreement  in  lease  that  tenant  shall  be  compensated  for,  31,  note. 

when  parol  agreement  taken  out  of  the  statute  of  frauds  by,  280, 

281. 
parol  license  made  binding  by,  283. 
on  real  estate,  under  parol  gift,  284,  285. 

value  of,  refunded,  upon  refusal  of  wife  to  convey  premises,  511. 
when  purchaser  entitled  to  allowance  for,  521. 

INCAPACITY, 

in  what  it  may  consist,  121. 

of  defendant  to  enter  into  agreement,  122,  162. 

of  plaintiff  at  time  of  bringing  suit,  123. 

rule  in  relation  to  married  women,  123,  note. 

may  be  objected  that  party  holds  a  confidential  position,  124. 

where  defendant  has  not  the  power  to  fulfil,  125. 

suit  may  be  retained  for  the  purpose  of  giving  compensation,  125. 

power  to  fulfil  acquired  subsequent  to  contract,  126. 

where  consent  of  third  person  is  necessary  which  is  refused,  127. 

literal  fulfilment  not  required,  128. 

where  contract  originally  lawful,  has  become  unlawful,  129.  • 

disability  relating  to  portion  of  contract,  130. 

where  one  of  two  alternatives  is  impossible  or  void,  131. 

INCOMPLETENESS, 

of  contract,  when  not  a  defence,  142, 
of  contract  in  respect  to  time,  143. 
with  reference  to  consideration,  146. 
material  omissions  from  contract,  149. 
presumption  as  to  omitted  terms,  150. 
See  Uncertainty. 


774  INDEX. 

INDEMNITY, 

when  title  to  be  taken  with,  423. 

vendee  may  have,  in  place  of  compensation,  507. 

where  wife  refuses  to  unite  with  her  husband  in  conveyance,  511 

INFANT, 

when  he  may  bring  suit,  55,  note. 
compelled  to  perform  contract,  62,  note. 
neglect  to  plead  statute  of  frauds,  103,  note. 
when  bound  by  contract,  123,  196,  note. 

INJUNCTION, 

where  stipulations  are  protected  by  a  penal  sum,  26. 

violation  of  articles  of  partnership  restrained,  34. 

to  restrain  the  setting  up  of  trade  in  violation  of  agreement,  35,  note. 

in  case  of  agreement  of  husband  and  wife  for  separation,  42. 

will  not  be  granted  to  enforce  a  covenant  the  breaches  of  which  are 

frequent,  49. 
making  of  secret  medicine  not  restrained  by,  49,  note. 
how  it  may  be  employed,  106. 
Only  granted  to  a  certain  extent,  106. 

holder  of  legal  title  restrained  from  disturbing  equitable  right,  106. 
during  pendency  of  suit,  106. 
may  be  granted  on  terms,  106. 

third  persons  restrained  from  prejudicing  plaintiff's  rights,  106. 
in  the  case  of  trustees  or  executors,  to6. 
to  restrain  party  from  enforcing  judgment,  107. 
to  restrain  an  action  for  damages,  108. 
not  in  general  granted  to  restrain  violation  of  contract  which  cannot 

be  enforced,  109,  note. 
to  prevent  acts  in  violation  of  the  agreement,  109. 
to  restrain  party  from  keeping  works  out  of  repair,  no,  and  notes. 
to  prevent  breach  of  partnership  articles,  in. 
where  contract  involves  a  negative,  112. 
in  the  case  of  an  agreement  consisting   of  affirmative  and  negative 

stipulations,  113. 
where  a  party  agrees  not  to  do  a  certain  thing,  1 14. 
restraining  breach  of  agreement  as  to  use  of  premises,  115. 
covenants  in  partial  restraint  of  trade  enforced  by,  115,  note. 
to  restrain  breach  of  agreement  not  to  apply  to  legislature,  116. 
restraining  violation  of  engagement  for  personal  services,  117. 
against  using  an  advantage,  obtained   by  fraud,  in  proceeding  at 

law,  345. 
application  for  must  show  present  right  to  performance,  425,  note. 


INDEX.  775 

INSOLVENCY, 

of  plaintiff,  a  defence,  433. 

not  an  excuse  for  neglecting  to  demand  performance,  445. 
See  Bankruptcy. 
INSURANCE, 

contract  of,  enforced,  32. 

INTENTION, 

need  not  have  been  wrongful  in  making  misrepresentation,  310. 

written  agreement  made  to  conform  to,  360. 

contract  not  reformed  when  term  intentionally  left  out,  373. 

materiality  of  time  of  performance  governed  by,  458. 

proof  of  as  to  time,  459,  460,  462. 

INTEREST, 

rule  as  to  allowance  of,  519. 

INTOXICATION, 

when  a  defence,  122,  162,  and  note. 

JUDGMENT, 

party  restrained  from  enforcing  contrary  to  agreement,  107'. 
when  lien  on  land  sold,  vendee  need  not  complete,  410. 

JUDGMENT  CREDITORS, 

may  be  made  parties  to  suit,  58. 

restrained  from  collecting  whole  amount  of  judgment,  107. 

violation  by,  of  agreement  for  forbearance  to  sue  restrained,  114. 

JURISDICTION, 

main  ground  of,  in  specific  performance,  i. 

in  equity,  advantages,  2. 

origin  of,  in  specific  performance,  3. 

range  of,  in  equity,  4. 

whether  remedy  by  mandamus  will  exclude,  not  settled,  4. 

of  U.  S.  courts,  and  in  Maine  and  Massachusetts,  6. 

objection  to,  not  allowed  after  testimony  all  in,  6,  note. 

where  the  legal  remedy  is  absent  or  uncertain,  7. 

not  defeated  by  a  possible  remedy  at  law,  10. 

most  frequently  exercised  in  relation  to  contracts  concerning  land, 

14. 
to  prevent  improper  diversion  of  specific  fund,  12,  note. 
in    respect  to  personal  property  when   there   is   not   an   adequate 

remedy  at  law,  16. 
not  entertained  to  enforce  contract  for  personal  services,  2>t^. 
to  enforce  foreign  contracts,  48. 

will  not  be  exercised  in  relation  to  continuous  duties,  49. 
of  courts  of  admiralty  in  cases  of  fraud  or  mistake,  360,  note. 
restricted  as  to  power  to  change  terms  of  contract,  501. 


776  INDEX. 

JURISDICTION— G;///'/////^'^. 

of  equity,  to  give  damages,  how  regarded,  514. 
to  award  damages  is  ancillary  to  other  relief,  515,  516. 
retained,  where  defendant  has  deprived  himself  of  the  power  to  ful- 
fil, 517. 
power  of  equity  to  give  damages  under  English  statute,  518. 
under  P2nglish  Chancery  Amendment  Act,  518,  note. 

LABOR, 

bestowed  on  land,  deemed  part  performance,  289. 

LAW, 

requires  precision  in  fulfilment  of  agreement,  i. 

remedy  lost  at,  may  be  set  up  in  equity,  i. 

when  attempt  to  recover  damages  at,  restrained,  i. 

disadvantages  of  remedy  at,  2. 

courts  of,  do  not  enforce  performance  of  contracts,  i,  note. 

absence  or  uncertainty  of  remedy  at,  a  ground  of  jurisdiction  in 
equity,  7. 

rale  as  to  establishing  right  at,  8. 

when  there  is  a  remedy  at,  equity  will  not  interfere,  9. 

possible  remedy  at,  not  an  objection  to  specific  performance,  10. 

when  there  is  no  adequate  remedy  at  in  relation  to  personal  prop- 
erty, 16. 

rule  as  to  mistake  of,  3=50. 

mistake  in  relation  to,  as  to  effect  of  contract,  351. 

where  by  mistake  of,  writing  does  not  embrace  agreement,  352, 

mistake  of,  in  compromise,  353. 

taking  advantage  of  another's  misapprehension  of,  354. 

distinction  between  ignorance  and  mistake  of,  355. 

mistake  of  both  law  and  fact,  357. 

proof  in  case  of  mistake  different  from  that  required  in  equity,  361. 

LEASE, 

when  stipulation  in,  regarded  as  in  the  nature  of  liquidated  damages, 

24. 

execution  of,  containing  covenant  to  repair,  decreed,  31. 

covenant  for  renewal,  enforced,  Ty(y. 

See  Lessor  and  Lessee. 

LEGAL  REMEDY.     See  Remedy. 

LEGISLATURE, 

agreement  not  to  apply  to,  enforced  by  injunction,  116. 

LESSOR  AND  LESSEE, 

when  enjoined  from  bringing  suit,  106. 

what  constitutes  an  acceptance  of  proposition,  135. 
acceptance  of  offer  with  qualification,  136. 


INDEX.  I'll 

LESSOR  AND  LESSEE— C^?;///////^^.    - 

assurance  by  landlord  to  tenant  of  an  honorary  nature,  not  binding, 

140. 
what  implied  in  contract,  150. 
liability  to  forfeiture  relieved  against,  177. 
right  of  lessee  to  fulfilment  of  contract  which  cannot  be  enforced 

against  him,  196,  note. 
possession  by  lessee  under  parol  agreement,  274,  275,  276, 
right  of  lessor  to  insist  on  covenants,  452. 
■   waiver  of  breach  of  contract  for  lease,  455- 

LICENSE, 

parol,  made  valid  by  improvements,  283. 

LIEN, 

power  of  equity  to  enforce,  4. 

of  mortgage,  agreement  to  release  land  from,  20. 

when  on  land  sold,  vendee  not  compelled  to  complete,  410. 

LIMITATIONS— Statute  of, 

what  plaintiff  should  state  to  take  case  out  of,  89,  note. 
what  required  to  enable  defendant  to  plead,  102,  note. 
title  depending  on,  may  be  marketable,  412. 

LIQUIDATED  DAMAGES.     See  Damages. 
LOSS.     See  Accident. 

LUNATIC, 

when  contract  of,  binding,  123,  note. 

MANDAMUS, 

whether  jurisdiction  of  equity  excluded  by,  not  settled,  4. 
to  enforce  performance  by  corporation,  49,  note. 

MAP, 

exhibition  of,  at  time  of  contract,  426. 

MARRIAGE, 

contracts  in  restraint  of,  void,  213. 

validity  of  parol  contract  in  contemplation  of,  288. 

MARRIAGE  ARTICLES, 

parties  in  suit  to  enforce,  52. 

when  promise  made  in  anticipation  of  marriage  not  binding,  140 

and  note. 
when  binding  on  wife,  186,  note. 
exception  to  rule  as  to  performance  in  case  of,  432. 
where  it  is  intended   that  covenants  shall  be  mutually  dependent, 

432. 
in  whose  behalf  enforced,  432. 


7/8  INDEX. 

MISREPRESENTATION, 

on  what  principle  cases  of,  decided,  139. 

of  material  fact  constitutes  fraud,  293. 

is  cause  for  rescinding  agreement,  293  and  note,  300. 

not  cured  by  offer  of  party  to  waive  benefit,  293. 

examples  of,  294. 

inducing  another  to  execute  an  instrument,  294,  note. 

when  not  relieved  against,  295, 

how  it  may  be  made,  297. 

may  consist  in  the  concealment  of  facts,  298,  299. 

right  of  purchaser  to  be  told  of  defects,  301. 

purchaser  not  bound  to  tell  what  may  increase  value  of  property, 

302. 
conditions  on  which  it  will  be  a  ground  for  relief,  303. 
must  be  shown  to  have  been  false,  304. 
party  making,  need  not  have  known  it  to  be  false,  305,  308. 
by  agent,  306. 

duty  of  party  making  innocently  to  correct,  307. 
in  relation  to  a  portion  of  subject  matter,  308. 
must  have  been  made  with  reference  to  the   contract,  and  at  the 

time,  309. 
need  not  have  been  made  with  a  fraudulent  intent,  310. 
must  have  been  relied  on,  311. 
must  relate  to  something  material,  which  is  unknown  to  the  other 

party,  312. 
remedy  must  be  sought  within  a  reasonable  time,  312. 
in  cases  of  trust  and  confidence,  313. 
boastful  or  exaggerated  statements,  314. 
presumption  that  the  pa^'ty  to  whom  it  was  made  was  not  misled, 

315- 
where  party  relies  on  his  own  judgment,  316. 
where  means  of  information  are  equally  open  to  both  parties,  317. 
remedy  in  case  of,  personal,  318. 
must  have  injured  the  party  complaining  of  it,  319. 
though  to  a  small  extent,  avoids  the  entire  contract,  319  and  note. 

MISTAKE, 

definition  and  nature,  348  and  note. 

of  both  parties  avoids  contract,  348, 

principle  on  which  it  is  a  defence,  348. 

of  law,  rule  as  to,  350. 

as  to  legal  effect  of  contract  not  relieved,  351. 

of  law,  in  omitting  from  instrument  what  was  intended,  352. 

of  law  in  compromise,  353. 


INDEX.  779 

MIST  A}L¥.— Continued. 

where  mistake  of  law  was  caused  by  the  other  party,  354. 

distinction  between  ignorance  and  mistake  of  law,  355. 

of  both  law  and  fact,  rule  in  relation  to,  357. 

must  not  be  caused  by  negligence,  358. 

must  be  material  and  unconscionable,  359. 

agreement  made  to  conform  to  intention  of  parties,  360. 

jurisdiction  of  courts  of  admiralty  in  cases  of,  360,  note. 

may  be  of  one  party  without  the  fault  of  the  other,  361. 

where  defendant  has  been  misled  by  plaintiff,  362. 

examples  of  mistake  by  defendant  alone,  363. 

who  may  be  relieved  against,  364. 

how  it  may  be  committed,  365. 

in  relation  to  subject  of  sale,  366. 

as  to  nature  of  contract,  367. 

in  reducing  contract  to  writing,  368. 

in  drawing  deeds,  369,  370,  371. 

where  part  of  property  agreed  to  be  mortgaged  is  omitted,  372, 

in  case  of  subsequent  parol  agreement  varying  terms  of  writing, 

374,  375- 
when  plain titf  compelled  to  have  bill  dismissed,  or  perform  agree- 
ment, 376. 
omission  of  customary  clause,  377. 
misunderstanding  of  contract,  378. 
right  of  plaintiff  to  prove  mistake  in  contract,  379. 
in  writing,  how  proved,  380.     * 
how  to  be  alleged,  382. 

where  correction  of  is  assented  to  by  plaintiff,  t^?)^,. 
when  equity  will  withhold  its  aid,  384. 
effect  of  lapse  of  time,  385. 

relief  in  case  of  defective  execution  of  power,  387. 
in  award,  when  corrected,  388. 
MONEY, 

obtained  under  illegal  contract  may  be  recovered,  207,  ?iote. 
payment  of  does  not  take  parol  agreement  out  of  statute  of  frauds, 

268,  269. 
advanced  on  purchase   of  wife's  land  refunded  on  her  refusal  to 

convey,  511. 

See  Payment. 
MORTGAGE, 

agreement  to  execute,  or  to  release  land  from  lien  of,  20. 

of  personal  property,  parol  contract  for,  20,  7iote. 

suit  by  assignee  of,  70. 

contract  for  enforced,  though   time  of  payment  not  specified,  151, 

fiotc. 


780  INDEX. 

MORTGAGE— Confwued. 

given  under  a  threat  of  criminal  prosecution,  217. 

mistake  as  to  subject  of,  corrected,  372  and  nofe. 

enforcement  of  contract   in  relation  to,  against  third  persons,  58, 

MUTUALITY, 

essential  in  contract,  196. 

what  constitutes,  196. 

examples  illustrating  rule,  197. 

contract  must  be  capable  of  enforcement  against  plaintiff,  198. 

how  judged  with  respect  to  time,  199. 

where  enforcement  of  contract  against  plaintiff  is  prevented  by 

subsequent  event,  199,  no/e. 
in  contracts  of  married  women,  199,  noU. 
in  contracts  for  personal  services,  199. 
exception  to  rule  in  case  of  optional  contracts,  200. 
where  contract  is  signed  by  only  one  party,  200  nofe,  201  and  no^e. 
waiver  of  the  want  of,  202. 

right  of  vendee  to  what  vendor  is  able  to  convey,  203,  499. 
where  interest  of  vendor  cannot  be  ascertained,  204,  507. 
where  conveyance  of  partial  interest  would  impair   rights   of  third 

persons,  205. 
when  a  large  part  of  property  cannot  be  conveyed,  206,  5 10. 

NEAR  RELATIVE, 

when  benefited  by  contract,  may  bring  suit,  53. 

what  relationship  will  entitle  party  to  a  decree,  53,  nofe. 
NE  EXEAT, 

how  the  writ  of  originated,  118. 

meaning  and  use,  and  what  commanded  by  it,  118. 

remedy  may  be  by  an  order,  118. 

must  appear  that  there  is  not  an  adequate  remedy  at  law,  119. 

must  be  an  equitable  claim  due  and  certain,  119. 

not  granted  when  defendant  has  been  held  to  bail,   120. 

under  the  statute  of  Arkansas,  119,  uo^e. 

order  for  arrest  of  party  intending  to  leave  the  State,  analogous  to, 
11 8,  nofe. 

when  application  for  writ  of  to  be  made,  118,  nofe. 

application  for,  must  show  present  right  to  performance,  425,  noU. 

NON-CONCLUSIOi\  OF  CONTRACT, 
may  constitute  a  defence,  132. 
difference  between  an  offer  and  an  agreement,  133. 
right  to  withdraw  proposition,  134. 

what  essential  to  constitute  an  acceptance,  135,  137,  138. 
where  acceptance  changes  terms  of  offer,  136. 


INDEX.  781 

NOTICE, 

liability  of  assignee  with,  75. 

extent  of  rule  as  to,  76. 

of  agreement  of  vendee  to  assign  contract,  80. 

by  party  of  refusal  to  fulfil  dispenses  with  tender,  450. 

to  limit  time  of  performance,  465, 

neglect  to  make  inquiry  may  have  the  same  effect,  506. 

OFFICE, 

contract  for  sale  of,  not  enforced,  34. 

OFFICER, 

selling  under  order  of  court,  may  file  bill,  88. 
of  government  when  personally  liable,  336,  note. 

PARENT  AND  CHILD, 

defective  conveyance  by  parent  aided,  40. 
gift  by  parent  in  consideration  of  support,  182. 

PARTIAL  PERFORMANCE, 

effect  of,  in  case  of  building  contract,  30. 

right  of  vendee  to,  203,  499. 

when  not  decreed,  204,  205,  206,  507,  510. 

lakes  parol  agreement  out  of  statute  of  frauds,  257,  et  seq. 

when  possession  constitutes,  270,  272,  274,  275,  276. 

skill  and  labor  bestowed  on  land,  282. 

what  acts  may  or  may  not  be  deemed,  289. 

verbal  agreement  substituted  for  written  contract  supported  by,  487. 

compensation  in  case  of,  522,  525,  7iote, 
PARTIES, 

by  whom  suit  to  be  brought,  50. 

stranger  to  contract,  not  in  general  a  proper  party  plaintiff,  50,  and 
note. 

exceptions  to  rule  in  relation  to  stranger  as  complainant,  51. 

in  case  of  suit  to  enforce  marriage  contract,  52. 

near  relative  entitled  to  bring  suit,  53. 

where  condition  of  stranger  has  been  changed,  54. 

persons  interested  in  subject  of  contract,  55,  and  note. 

when  infant  may  maintain  suit,  55,  note. 

adverse  claimants  to  interest  of  vendor  or  vendee,  56. 

persons  claiming  adversely  to  rights  of  both  parties,  57. 

stranger  not  a  necessary  party  defendant,  58. 

judgment  creditors  of  vendor,  58. 

assignee  of  note  for  purchase  money  may  maintain  bill,  58,  note. 

sub-purchaser  not  a  proper  party,  59,  69. 

purchasers  of  distinct  parcels  of  land,  60. 

when  unconnected  parties  may  join  in  bill,  60,  note. 


782  INDEX. 

PARTI  ^^S)— Continued. 

making  some  of  several  parties,  61. 

in  case  of  death  of  vendor,  62. 

superseded  executor  need  not  be  a  party,  62,  note. 

in  suit  by  executors  of  vendor  to  foreclose  lien  for  purchase  money, 

62,  note. 
in  New  York,  infant  heir  compelled  to  perform  contract,  62,  note. 
statute  of  Iowa,   in  relation   to   making  executor  or  administrator 

party,  62,  note. 
where  property  is  vested  in  trustees,  62,  65. 
in  case  of  death  of  purchaser  before  completion,  63. 
where  purchaser  dies  during  pendency  of  suit  by  vendor  against 

him,  Gt,. 
when  both  of  the  parties  to  the  contract  are  deceased,  63. 
purchaser  with  notice  of  previous  contract,  64,  75,  and  7iotes,  76. 
in  case  of  husband  and  wife,  66,  and  7wtes. 
where  a  new  contract  has  been  substituted,  67. 
right  of  assignee  to  maintain  suit,  68. 
when  assignor  need  not  be  made  a  party,  68,  note. 
parties  to  bill  in  case  of  assignment,  69. 
where  the  suit  is  by  assignee  of  mortgage,  70. 
in  case  of  sale  under  decree,  or  on  execution,  71. 
where  contract  is  dependent  upon  learning,  skill,  or  solvency  of 

party,  72. 
in  case  of  agreement  based  on  personal  considerations,  73. 
where  an  assignment  is  unlawful,  74. 

liability  of  company  upon  formation  of  new  company,  77. 
in  case  of  assignment  of  equitable  title,  78. 
in  suit  by  holder  of  equitable  title,  79. 
where  third  person  gives  vendor  notice  that  vendee  has  agreed  to 

assign  the  contract  to  him,  80. 
rule  where  contract  entered  into  by  promoters  of  public  company, 

81,  82,  83. 
where  the  contract  is  entered  into  by  an  agent,  84,  85,  and  fiotes. 
in  suit  by  purchaser  where  land  has  been  decreed  to  vendor,  but  not 

conveyed  to  him,  50,  note. 
officer  selling  under  order  of  court,  may  file  bill,  88. 
indefiniteness  of  contract  in  relation  to,  145,  155. 
rights  of  third  persons  acquired  subsequent  to  contract  regarded,  163. 
effect  of  bringing  into  agreement  a  new  party,  485. 
■p\.\xch?iSQr pendente  lite  need  not  be  joined  in  order  to  be  bound  by 

decree,  512. 
PARTITION, 

parol  possession  of  real  estate  under,  277. 


INDEX.  yST, 

PARTNERSHIP, 

violation  of  articles  of,  enjoined,  34,  in,  113,  no^e. 

execution  of  deed  of,  34. 

contract  for,  to  continue  a  specified  time,  enforced,  34. 

agreement  in  relation  to  business  details  not  enforced,  49,  noU. 

heirs  of  deceased  partner  necessary  parties,  63,  no/e. 

when  induced  by  fraudulent  representations,  293,  jwfe. 

bound  by  false  statements  of  member  of,  306. 

contract  of,  must  be  enforced  in  its  entirety,  389. 
PATENT, 

agreement  in  relation  to,  not  within  statute  of  frauds,  229,  ut?^e. 

PAYMENT, 

offer  of  less  than  contract  calls  for,  440. 

of  money  into  court,  441. 

need  not  be  made  by  purchaser  until  deed  delivered,  444. 
See  Money. 
PENALTY, 

specific  performance  of  agreement  given  with,  21. 

when  party  may  elect  to  pay,  or  perform  an  act,  23. 

liquidated  damages  treated  as,  23. 

intention  of  parties  regarded,  23,  /lofe. 

when  stipulation  in  lease  deemed  in  the  nature  of,  24. 

sum  reserved,  regarded  as,  25. 

in  case  of  agreement  not  to  set  up  trade,  35,  fiofe. 

when  breach  of  condition  in  the  nature  of,  relieved,  435. 

not  favored  in  equity,  435. 

See  Forfeiture, 
PERFORMANCE, 

when  substantial  intended,  i, 

precision  in  required  at  law,  i, 

incapacity  and  inability  of  party,  121,  et  seq.,  430, 

substantial  fulfilment  sufficient,  128,  129,  130,  131,  415,  422. 

when  ground  for  enforcing  incomplete  contract,  142. 

where  literal  fulfilment  will  occasion  hardship,  175. 

impossibility  of,  after  bringing  suit,  195. 

by  corporation  when  ultra  vires,  219. 

to  take  contract  out  of  statute  of  frauds,  257,  259,  261, 

rule  as  to,  embraces  both  parties  to  contract,  425, 

present  right  to  must  be  shown  by  party  applying  for  injunction,  7ie 
exeat,  or  receiver,  425. 

of  subsequent  acts  promised,  426. 

rule  as  to  separate  agreement,  428. 

doing  of  merely  formal  act  not  required,  429. 

when  separate  liability  must  be  discharged,  431. 


784  INDEX. 

FERFORMANCE— Continued. 

exception  to  rule  as  to,  432. 

bankruptcy  or  insolvency  of  party,  433. 

where  contract  is  conditional,  434. 

where  a  condition  precedent  is  in  the  nature  of  a  penalty,  435. 

rule  as  to  default  in  respect  to  time,  436. 

breach  of  condition  subsequent,  437. 

plaintiff  required  to  show  a  tender,  438  and  Nofes,  443. 

what  deemed  a  sufficient  tender,  439,  440. 

payment  into  court,  441. 

right  of  party  upon  default  of  the  other,  442. 

vendee  not  required  to  pay  until  he  receives  his  conveyance,  444. 

demand  of,  445,  446,  and  no^es. 

offer  of,  may  be  made  in  bill,  447. 

action  for  purchase  money  cannot  be  maintained  without  offer  of, 
447,  nofe. 

when  offer  of  unnecessary,  450. 

acts  of  plaintiff  disentitling  him  to,  451,  e^  sei/. 

rule  as  to  time  of,  456,  <?/  se^. 

of  ante-nuptial  agreement,  right  of  wife  to  elect  whether  or  not  to 
accept,  505,  noie. 
PERSONAL  CONTRACTS, 

depending  upon  skill,  learning,  or  solvency  of  party,  72. 

when  influenced  by  motives  of  kindness  or  dislike,  73. 

death  of  party  where  the  contract  was  personal,  87. 

breach  of,  restrained  by  injunction,  117. 
PERSONAL  PROPERTY, 

contract  in  relation  to,  not  in  general  specifically  enforced,  t6. 

jurisdiction  when  there  is  not  an  adequate  remedy  at  law,  16,  17. 

where  agreement  for  delivery  is  part  of  contract  capable  of  being 
enforced,  16. 

rule  as  to  contract  for  specific  delivery  of,  1 7. 

where  goods  are  wrongfully  detained,  17,  and  /w^e. 

articles  of  exceptional  value,  t8. 

where  it  can  only  be  supplied  by  defendant,  18, 

contract  for  sale  of  stock,  19. 

sale  of  shares  in  company,  19. 

agreement  to  convey  real  estate  and  transfer  shares,  19. 

contract  in  relation  to  debts,  20,  and  fioU. 

contract  to  borrow  or  lend  money,  or  to  give  security  for  a  debt,  20. 

agreement  to  grant  annuity,  or  to  release  land  from  mortgage,  20. 
PERSONAL  SERVICES, 

contracts  for  not  in  general  specifically  enforced,  33,  49,  72. 

violation  of  agreement  for  enjoined,  117. 

mutuality  in  contract  for,  199, 


INDEX.  785 

PLAN, 

effect  of  showing  at  time  of  contract,  426. 

PLEADINGS, 

must  show  that  plaintiff  cannot  be  indemnified  in  damages,  88. 

when  defendant  may  demur  to  bill,  88,  8g. 

bill  may  be  shaped  either  for  specific  performance,  or  a  cancelment 
of  the  contract,  88. 

officer  selling  under  order  of  court  may  file  bill,  88. 

when  fraud  is  relied  on  by  plaintiff  as  the  ground  of  a  decree,  it 
must  be  alleged  in  bill,  88,  note. 

plaintiff  must  show  affirmatively  that  he  is  entitled  to  relief,  89. 

where  several  are  joined  as  plaintiffs,  89. 

averment  of  devise  or  grant,  89. 

public  statutes  need  not  be  set  forth,  89. 

where  bill  shows  that  case  is  within  statute  of  limitations,  89,  note. 

what  to  be  put  in  issue  by  bill,  90. 

bill  must  show  that  contract  can  be  enforced,  91. 

averment  of  bill  where  contract  made  by  agent,  92. 

how  contract  should  be  alleged,  93,  292. 

description  of  land,  94. 

averment  of  consideration,  95. 

plaintiff  must  allege  performance,  96. 

averment  of  demand  and  refusal,  97. 

charging  injury,  98. 

prayer  for  relief,  99. 

when  cross  bill  necessary,  100. 

distinction  between  a  bill  and  a  cross  bill,  100. 

what  a  cross  bill  should  contain,  100,  note. 

amendment  by  plaintiff,  toi,  and  note. 

statute  of  frauds  may  be  objected  by  demurrer,  102. 

plea  or  answer  setting  up  statute  of  frauds,  103. 

objection  that  wife  did  not  unite  in  contract,  104. 

averment  of  new  matter,  105. 

how  mistake  should  be  alleged,  382. 

amendment  of  bill  where  plaintiff  admits  mistake  in  contract,  383. 

may  be  objected  that  there  is  a  substantial  defect  in  subject  of  con- 
tract, 400. 

grounds  for  compensation  must  be  alleged  in,  500. 
POSSESSION, 

where  it  will  not  aid  party  to  obtain,  4. 

to  take  parol  agreement  out  of  statute  of  frauds,   270,  272,  274, 
275,  276. 

title  depending  on,  need  not  be  accepted,  412. 

may  tend  to  show  a  good  title,  416. 

50 


786  INDEX. 

FOSSESSlON—Confi/wed. 

meaning  of  agreement  to  give,  463. 

effect  of,  in  case  of  delay  of  party  to  fulfil,  468. 

POWER, 

when  defective  execution  of,  aided,  387. 

PRESUMPTIONS, 

as  to  terms  omitted  from  contract,  150. 

when  vendee  required  to  admit,  150,  no^e. 

in  contract  for  lease,  150. 

may  be  rebutted,  151. 

that  party  to  whom  false  statement  was  made  was  not  deceived,  315. 

of  fraud  from  insufficient  consideration,  327. 

when  fraud  presumed  from  voluntary  conveyance,  341,  342. 

of  mistake,  from  extinguishment  of  legal  right,  381. 

good  title  implied  in  contract  of  sale,  414,  419. 

what  inferred  from  agreement  to  give  a  good  deed,  414. 

where  title  rests  on  presumption,  416. 

as  to  time  of  performance,  459,  460. 

as  to  title,  from  stipulation  to  give  possession.  463. 

PUBLIC  POLICY, 

how  power  to  declare  contract  void  as  against  ought  to  be  exercised, 

208. 
contracts  void  as  being  contrary  to,  213,  218. 

PUBLIC  SALE, 

inadequacy  of  bid  at,  184,  and  nofes. 

time  at  which  contract  becomes  complete  in  case  of,  191. 

fraudulent  interference  with,  343. 

signing  memorandum  of  agreement  by  conductor  of,  246. 
See  Auction. 
PUBLIC  STATUTES.     See  Statutes. 

RAILROAD  COMPANY, 

right  to  adopt  means  not  prescribed  by  charter,  220,  221,  noU. 
forfeiture  of  charter  by,  a  defence  of  land-owner,  223,  nofe. 
See  Company. 
RECEIPT, 

may  constitute  an  agreement,  235. 

RECEIVER, 

application  for,  must  show  present  right  to  performance,  425,  nofe. 

REFERENCE, 

to  arbitration,  agreement  for,  not  enforced,  44. 

REFORMATION, 

of  written  agreement  by  parol,  254,  372,  374. 

of  writing  in  case  of  mistake,  360  and  ucte,  36S,  372. 


INDEX.  787 

RtFORM  ATION— Confim/ed. 

of  deed  in  action  of  ejectment  not  necessary,  370,  nofe. 
not  decreed  where  term  intentionally  omitted,  373. 
not  granted  when  it  will  impair  a  right,  384. 

REMEDY, 

lost  at  law,  may  be  enforced  in  equity,  i. 

of  specific  performance,  benefit  of,  2. 

for  enforcement  of  contracts,  origin,  3. 

absence  or  uncertainty  of  at  law,  a  ground  of  jurisdiction  in  equity,  7. 

in  case  of  at  law,  equity  will  not  grant  relief,  9. 

possible  at  law,  will  not  defeat  jurisdiction  of  equity,  10. 

concurrent  in  damages  not  an  objection  to  specific  performance,  10. 

ground  of  vendor's  claim  to,  15. 

by  mandamus  for  enforcing  duty  of  corporation,  49,  nofe. 

RENTS  AND  PROFITS, 

rule  as  to  allowance  of,  519. 

REPAIRS, 

specific  performance  of  covenants  to  repair  not  usually  decreed,  31, 

and  fiofe. 
relief  against  forfeiture  for  breach  of  covenant  in  relation  to,  31. 
execution  of  lease  containing  a  covenant  to  repair,  decreed,  31. 
when  covenant  to  make  improvements  enforced,  31. 
specific  performance  of  charter  party  providing  for,  not  decreed,  31. 
rule  as  to  liability  for,  520. 

REPRESENTATION, 

may  constitute  a  contract,  139. 

what  required  to  entitle  party  to  relief,  140. 

failure  of  plaintiff  to  fulfil  may  be  a  defence,  296. 

See  Misrepresentation. 
REVERSION, 

hardship  in  contract  for  sale  of,  178. 

sale  of,  not  set  aside  for  inadequacy  of  price,  180. 

ROMAN  LAW. 

in  relation  to  inadequacy  of  consideration,  179,  nofe. 

SALE, 

of  good  will,  rule,  35. 

at  auction,  fraudulent  interference  with,  343. 

officer  selling  under  order  of  court,  may  file  bill,  88. 

how  purchaser  compelled  to  complete,  when  it  is  under  order  of 

court,  88,  nofe. 
distinction  between  offer,  and  contract  of,  133, 
right  of  party  to  withdraw  proposition,  134. 
what  constitutes  an  acceptance  of  offer,  135,  137,  138. 
where  party  replying  to  proposition,  changes  its  terms,  136. 


ySS  INDEX. 

S.^LE — Contimied. 

at  auction,  insufficiency  of  memorandum  as  to  name  of  party,  45. 

in  contract  of,  consideration  must  be  stated,  146. 

mode  of  ascertaining  price  maybe  material,  147. 

presumption  where  conditions  have  been  performed,  150. 

of  trustees  when  not  fair  and  honest,  void,  164,  note. 

of  doubtful  rights  sustained,  166. 

not  enforced  when  adjoining  land  will  be  depreciated,  169. 

of  reversion,  hardship  in  contract  for,  178. 

judicial  inadequacy  of  price  at,  184,  and  notes. 

mistake  in  relation  to  subject  of,  366. 

of  land  in  gross,  407. 

of  property  with  all  faults,  408. 

illegal,  title  depending  on  need  not  be  accepted,  412. 

judicial,  right  of  purchaser  at  to  a  good  title,  414,  note. 

compensation  how  affected  by  nature  of,  509. 

liability  of  subsequent  purchaser  with  notice,  512. 
SCRIVENER.     See  Draftsman. 

SEAL, 

substitution  of,  for  party's  name,  240,  note. 

SEPARATION, 

of  husband  and  wife,  agreements  for,  42. 

articles  of  enforced,  notwithstanding  adultery  of  wife,  42. 
SETTLEMENT,     See  Family  Settlement. 
SPECIFIC  PERFORMANCE, 

meaning  of,  i,  note. 

qualified  sense  in  which  term  used,  i,  note. 

advantages  and  benefit  of,  2. 

origin  of  jurisdiction  in,  3. 

where  damages  are  also  claimed  in  reference  to  same  transaction,  5. 

in  what  sense  in  discretion  of  court,  6. 

where  remedy  at  law  is  absent  or  uncertain,  7. 

decreed  as  to  other  instrument  required  to  carry  out  original  agree- 
ment, 7. 

may  be  decreed  though  no  action  for  damages  could  have  been 
maintained,  8. 

concurrent  remedy  at  law  will  not  prevent,  10. 

of  what  contracts  decreed,  11. 

sufficient  that  the  ends  of  justice  cannot  otherwise  be  subserved,  12. 

not  in  general  decreed  as  to  personal  property,  16. 

of  agreement  given  with  a  penalty,  21, 

in  case  of  stipulation  to  pay  liquidated  damages,  22. 

where  performance  is  enforced  by  injunction,  26. 


INDEX.  789 

SPECIFIC  PERFORMANCE— O/////;;/^'^/. 

in  the  case  of  building  contracts,  27,  30. 

of  covenants  to  repair,  not  usually  decreed,  31. 

of  contract  to  insure,  32. 

of  charter  party,  not  decreed,  31. 

of  compromise,  43. 

not  decreed  of  agreement  to  refer  to  arbitration,  44. 

of  award,  45. 

of  foreign  contracts,  48. 

what  relationship  to  party  necessary  for,  53,  note. 

where  the  contract  is  personal,  72,  73. 

must  in  general  be  as  to  entire  contract,  389. 

contract  must  be  capable  of  being  enforced  on  both  sides,  392. 

exception  to  rule  that  it  cannot  be  as  to  only  part  of  contract,  397, 

398>  399- 
barred  by  open  and  wrongful  violation  of  contract,  453. 

SPIRITUOUS  LIQUOR, 

defence  that  party  was  under  the  influence  of,  122,  162,  and  note. 

STATUTE  OF  FRAUDS, 

foreign  contract  must  satisfy  terms  of  fourth  section  of,  48. 

bill  showing  contract  within,  demurrable,  89. 

may  be  objected  by  demurrer,  102. 

setting  up,  by  plea  or  answer,  103. 

general  denial  does  not  raise  issue  of,  103. 

neglect  to  plead,  not  allowed  to  prejudice  rights  of  infant  heirs,  103, 

note. 
how  it  originated,  and  language  of,  228. 
.  requirements  of,  229. 
parol  agreement  previous  to,  enforced,  229,  note. 
agreements  which  are  or  are  not  within,  229,  note. 
what  writing  sufficient,  231,  232,  and  notes. 
agreement  may  be  made  by  letters,  232,  235. 
in  case  of  two  writings,  233. 
when  telegram  insufficient.  232,  note. 
reference  in  writing  to  terms  agreed  upon  by  parol,  233. 
what  required  in  memorandum,  234. 
statement  of  consideration,  235,  note. 
receipt  may  constitute  memorandum,  235. 
insufficient  description  of  real  estate  sold,  236. 
what  description  of  premises  sold  sufficient,  237. 
identification  of  property  sold  by  parol  proof,  23S. 
by  whom  agreement  must  be  signed,  239. 
signature  of  agreement  in  Pennsylvania,  239,  note. 
statutes  of  several  States  in  relation  to  signing  memorandum,  240. 


790  INDEX. 

STATUTE  OF  VRhVT>?>—Cofitmued. 

want  of  mutuality  of  agreement,  239,  note. 

contract  made  binding  by  acceptance  of  deed,  239,  note. 

place  and  character  of  signature,  240. 

substitution  of  seal  for  party's  name,  240,  7iote. 

execution  of  memorandum  under  statute  requiring  it  to  be  sub- 
scribed, 240. 

intention  of  i)arty  to  affix  signature,  241. 

who  competent  to  sign  as  agent,  242,  and  7iofcs. 

general  agency  sufficient,  243. 

relaxation  of  rule  at  common  law,  as  to  authority  of  agent,  243,  note. 

written  authority  to  agent  strictly  construed,  243,  7iote. 

ratification  by  principal  of  agent's  act,  244, 

manner  of  agent's  signing,  245. 

signing  by  conductor  of  public  sale,  246. 

memorandum  of  auctioneer,  247. 

exceptions  to  rule  as  to  parol  contracts,  248. 

writing  prevented  by  fraud,  249. 

principle  on  which  fraud  takes  case  out  of,  249,  note. 

implied  trusts  not  wilhin,  250. 

ground  on  which  equity  upholds  parol  trust,  251. 

verbal  agreement  to  purchase  for  benefit  of  another,  252,  253. 

rectification  of  written  agreement  by  parol,  254. 

not  a  defence  where  property  is  obtained  by  fraud,  255. 

verbal  agreement  without  consideration,  256. 

rule  as  to  effect  of  part  performance,  257. 

States  in  which  proof  of  part  performance  not  allowed,  258. 

part  performance  to  take  case  out  of,  not  recognized  at  law,  259. 

principle  on  which  part  performance  takes  case  out  of,  260, 

what  performance  required,  261,  262,  263,  264,  266. 

proof  of  parol  agreement,  265. 

parol  promise  made  for  benefit  of  stranger,  267. 

parol  agreement  not  taken  out  of,  by  payment  of  purchase  money, 
268,  269. 

rule  as  to  possession  of  land  by  vendee  under  parol  contract,  270, 
272,  274,  275,   276. 

possession  of  land  by  donee,  271. 

how  length  of  possession  is  regarded,  273. 

possession  by  tenant,  274,  275,  276. 

possession  of  real  estate  under  a  parol  partition,  277. 

parol  agreement  for  settlement  of  disputed  boundary,  278. 

exchange  of  lands  by  parol,  279. 

when  improvements  will  take  parol  contract  out  of  statute,  280, 
281. 


INDEX.  791 

STATUTE  OF  FRAUDS~a^;/////;/^rt'. 

skill  and  labor  bestowed  on  land,  deemed  a  part  performance,  282. 

parol  license  made  valid  by  improvements,  283. 

improvements  on  real  estate  under  a  parol  gift,  284,  285. 

distinction  between  a  gift  and  pronn'se  of  a  gift  of  real  estate,  286. 

parol  agreement  in  contemplation  of  marriage,  288. 

what  acts  may  or  may  not  be  deemed  a  part  performance,  289. 

validity  of  agreements  with  reference  to  time  of  performance,  290. 

proof  of  parol  agreement,  29T. 

how  contract  should  be  pleaded,  292. 
STATUTE  OF  LIMITATIONS.     See  Limitations,  Statute  of. 

STATUTES, 

need  not  be  set  out  in  pleading,  89. 

gaming  contracts  made  illegal  by,  217. 

defence  that  contract  is  forbidden  by,  210  7Wie,  215,  217. 

in  relation  to  signing  memorandum  of  agreement,  240. 

requiring  memorandum  of  agreement  to  be  subscribed,  240. 

as  to  fraud  against  creditors,  339.  » 

language  and  object  of  Sir  Hugh  Cairns'  act  relative  to  award   of 
damages,  518,  and  7iote. 
STOCKS, 

contract  for  sale  of,  19. 

sales  of  shares  in  company,  19. 

agreement  to  convey  real  estate  and  transfer  shares,  19. 

time  contracts  in,  not  enforced,  331. 
STRANGER  TO  CONTRACT, 

not  in  general  a  proper  party  plaintiff,  50,  and  7ioie. 

as  complainant,  exception  to  rule  in  relation  to,  51. 

suit  by,  when  his  condition  has  been  changed,  54. 
SURPRISE, 

ground  of  relief  in  cases  of,  159,  7iote. 

TAXES, 

indirect  performance  of  stipulation  to  pay,  128,  77ote. 

vendee  compelled  to  take  land  sold  for,  409. 
TELEGRAPH, 

when  despatches  by,  do  not  constitute  an  agreement,  232,  7iote. 
TENDER, 

rule  in  relation  to,  as  between  vendor  and  vendee,  438,  442,  443. 

when  deemed  sufficient,  439,  440. 

payment  into  court,  441,  and  7wte. 

of  purchase  money,  need  not  be  made  until  deed  delivered,  444. 

when  unnecessary,  446,  450. 

may  be  made  in  bill,  447. 

who  to  prepare  and  tender  deed,  448. 


792  INDEX. 

TERMS, 

precision  in  fulfilment  of,  required  at  law,  t. 
when  unimportant,  cannot  be  set  up  in  defence,  i. 

THREATS, 

contract  obtained  by,  void,  159  tiote,  t^t^T)- 
TIMBER, 

purchaser  enjoined  from  cutting,  106. 
TIME, 

when  negotiation  terminates  in  contract,  138, 

incompleteness  of  contract  in  respect  to,  142. 

materiality  of,  may  be  implied,  151,  note. 

of  completion  of  contract  where  sale  is  under  order  of  court,  191. 

termination  of  interest  by  lapse  of,  195. 

mutuality  of  contract  how  judged  in  respect  to,  199. 

of  possession,  when  a  defence  to  the  statute  of  frauds,  273,  290. 

effect  of  lapse  of,  in  case  of  mistake,  385. 

given  to  purchaser  to  satisfy  himself  as  to  incumbrance,  419. 

allowed  vendor  to  make  title,  420. 

rule  as  to,  in  case  of  default  by  vendor  or  vendee,  436. 

of  allowing  compensation,  500. 

how  treated  in  equity,  456. 

in  cases  of  concurrent  jurisdiction,  456. 

under  the  New  York  Code,  456,  note. 

how  materiality  of  determined,  458. 

not  usually  material  in  contracts  for  sale  of  land,  458,  note. 

when  tin)e  of  payment  cannot  be  extended,  458,  note. 

proof  tfcat  it  was  deemed  of  the  essence,  459,  462. 

presumption  that  it  is  essential,  460,  and  7iote. 

may  be  made  material  by  stipulation,  461, 

meaning  of  agreement  that  party  shall  have  possession,  463. 

method  of  reckoning,  464. 

of  performance,  may  be  limited  by  notice,  465. 

construction  of  agreement  in  relation  to,  466. 

not  essential  when  default  admits  of  compensation,  467. 

default  of  party  excused  by  possession,  468. 

what  will  constitute  a  stale  equity,  469. 

where  value  of  property  has  changed,  470. 

delay  in  performance  must  be  excused,  47  c. 

consumed  in  negotiation,  472. 

consequences  of  long  delay  in  general,  473. 

unreasonable  delay  of  vendor,  474. 

laches  of  purchaser,  475. 

lapse  of,  entitling  vendor  to  resell,  476. 

delay  in  bringing  suit,  477. 


INDEX.  793 

TIME — Contmiced. 

acquiescence  by  party  in  delay,  478,  479,  480,  483. 
extending  time  of  payment,  481. 
continuing  to  negotiate,  482. 

TITLE, 

vendor  compelled  to  execute  bond  for,  14,  note. 

conveyance  of,  by  trustee  decreed,  14,  note. 

covenant  to  give,  does  not  necessarily  import  a  warranty  deed,  150, 
note. 

right  of  vendee  to  have  a  good,  409. 

duty  of  vendor  to  give,  410. 

may  be  perfected,  notwithstanding  land  sold  for  taxes,  409. 

inchoate  right  of  dower  deemed  an  incumbrance,  402. 

judgment  lien  on  land  sold,  410. 

cloud  on,  an  objection,  411,  419. 

must  be  a  good  equitable  as  well  as  legal,  411,  and  7iote. 

duty  of  court  to  decide  doubtful  cases  of  construction,  411,  note. 

doubt  as  to,  constituting  a  defence,  412. 

depending  upon  bar  of  statute  of  limitations,  412. 

adverse  decision,  413. 

is  implied  in  every  contract  of  sale,  414,  419, 

right  of  purchaser  at  judicial  sale,  414,  note. 

presumption  that  vendee  is  buying  property  unincumbered,  414. 

trifling  objections  to,  not  a  defence,  415. 

where  it  rests  on  a  presumption,  416. 

how  affected  by  suspicious  circumstances,  417.  • 

incumbent  on  vendee  to  show  defect  in,  419. 

time  allowed  purchaser  to  satisfy  himself  as  to  incumbrance,  419. 

right  of  vendee  to  withhold  payment,  419. 

delay  of  vendor  to  make,  420, 

knowledge  of  vendee  of  defect  in,  421. 

defect  in  as  to  part  of  property  sold,  422. 

when  to  be  taken  with  indemnity,  423. 

waiver  of  by  vendee,  424. 

where  vendor  sells  without  warranty,  424,  iiote. 

failure  to  prove  execution  of  deeds,  a  defence,  433. 

tender  of,  must  be  shown,  438. 

parol  evidence  divesting,  490,  note. 

measure  of  damages  upon  failure  of,  525,  and  note. 
TRADE, 

covenants  in  partial  restraint  of,  enforced  by  injunction,  115,  7iote. 

agreements  in  restraint  of,  213,  and  note. 
See  Good-will. 


794  INDEX. 

TRUSTEES, 

compelled  to  convey  title,  14,  note. 
parties  to  suit  where  property  is  vested  in,  62,  65. 
restrained  from  improperly  disposing  of  trust  assets,  106. 
incapacity  to  contract,  may  be  objected,  124. 
contract  of  in  breach  of  trust  not  enforced,  164. 
sale  of,  not  fair  and  honest,  void,  164,  note. 
consideration  in  contract  of,  must  be  sufficient,  164. 
where  they  exceed  their  authority,  or  misrepresent  value  of  prop- 
erty, 64. 
not  compelled  personally  to  exonerate  the  estate,  169. 
right  oi.  cestui  que  trust  to  enforce  contract  with,  196,  note. 
misrepresentations  by,  313. 
person  committing  fraud  deemed  a  trustee,  334. 
TRUSTS, 

ground  on  which  a  parol  trust  is  upheld,  251. 

verbal  agreement  to  buy  for  benefit  of  another,  252,  253. 

when  created  under  a  contract,  389. 

conveyance  in  trust  to  secure  payment  of  debt,  389,  fiote. 

in  case  of  jomt  purchase,  513. 

ULTRA  VIRES, 

meaning  and  nature  of  defence,  219. 

by  whom  objection  may  be  taken,  219. 

powers  and  capacities  of  corporations,  220. 

distinction  between  unauthorized  purpose  and  unauthorized  means, 

2CI. 

burden  of  proof  on  party  objecting,  222. 

when  contract  of  corporation  void,  223. 

use  of  powers  impliedly  prohibited,  224. 

when  corporation  not  bound  by  its  deed,  223,  note. 

validity  of  contract  of  persons  who  are  not  stockholders,  225. 

party  cannot  avail  himself  of  as  a  defence,  after  performance,  226. 

when  compensation  paid  may  be  recovered,  227. 

plea  of,  not  a  defence  in  all  cases,  224,  7iote. 

UNCERTAINTY, 

degree  of  certainty  required  in  contract,  144. 
when  parol  evidence  admissible  to  remove,  144,  and  note. 
of  description,  when  not  a  defence,  144,  note,  153,  note. 
in  relation  to  the  parties,  145,  155. 
as  to  consideration,  146. 

importance  of  certainty  of  contract,  152,  and  note. 
immaterial  omissions,  153. 

locality  and  description  of  land,  must  be  capable  of  ascertainment, 
154. 


INDEX.  795 

VNCERTAlNTY—Co7i^m?/ed. 
examples  of,  156. 

inconsistent  or  ambiguous  stipulations,  157. 
uncertain  contract,  afterward  made  certain,  167. 
See  Incompleteness. 

UNFAIRNESS, 

contract  how  regarded  with  reference  to,  159. 

obtaining  contract  by  threats,  159,  noU. 

inadvertent  omission  of  term,  160. 

concealment  of  facts  without  fraud,  161. 

duty  of  party  to  apprise  the  other  of  facts  unknown  to  the  latter, 

161,  7>ofe. 
contract  not  deemed  unfair  in  consequence  of  unforeseen  events, 

165. 
sales  of  doubtful  rights  valid,  166. 

USURY, 

contract  affected  with,  not  enforced,  216,  332. 

VALUATION, 

when  the  court  will  direct  mode  of,  44. 

when  ascertained  by  court,  47,  148. 

inability  of  court  to  appoint  valuers,  147. 
VALUERS.     See  Arbitration,  Valuation. 

VENDOR   AND  VENDEE, 

duty  of  vendor  to  furnish  deed  in  place  of  one  lost,  14,  fio^e. 

vendor  compelled  to  execute  bond  for  title,  14,  nofe. 

groLuid  for  claim  of  vendor  to  specific  performance,  15.* 

objections  to  suit  of  vendor  how  regarded,  15. 

vendor  may  have  had  a  special  object  in  view,  15,  nofe. 

vendor  has  a  choice  of  remedies,  15,  nofe. 

suit  where  contract  is  abandoned  and  vendor  in  possession,  \^^note. 

right  of  vendor  to  determination  of  conflicting  rights,  56,  note. 

sub-purchaser  not  a  proper  party,  59,69. 

vendees  of  distinct  parcels  of  land  not  to  be  made  co-defendants,  60? 

adverse  claimants  not  proper  parties,  57. 

when  adverse  claimants  may  be  made  defendants,  57. 

parties  to  suit  in  case  of  death  of  vendor,  62. 

co-heirs  of  deceased  vendor  required  to  join  in  bill,  62. 

creditors  of  deceased  vendor  may  bring  suit,  62, 

rule  as  to  parties  where  purchaser  dies  before  completion,  d^^. 

parties  to  suit  when  vendor  and  vendee  deceased,  (>t,. 

liability  of  persons  claiming  with  notice,  64,  75,  and  iiotes^  76. 

vendor  enjoined  from  conveying  title  pending  suit,  106. 

purchaser  enjoined  from  cutting  timber,  106. 


79*5  INDEX. 

VENDOR  AND  VENDEE— Co;ifi//?/ed. 

violation  of  agreement  of  vendor  not  to  bring  suit  on  bond  re- 
strained, 1 14. 

vendor  entitled  to  a  writ  of  ;/<?  exeaf,  119. 

right  to  withdraw  offer,  134. 

what  constitutes  an  acceptance  of  offer,  135,  137,  138. 

acceptance  of  offer  with  qualification,  136. 

term  "vendor"  an  insufficient  description  of  party,  145. 

what  presumptions  vendee  required  to  admit,  150,  «<?/<?. 

covenant  arising  from  words  "grant,  bargain,  and  sell,"  150,  ?/<?/<?. 

when  property  at  the  risk  of  the  vendor,  193, 

when  loss  is  to  be  borne  by  the  vendee,  194. 

written  proposition  of  vendor  enforced,  200,  ;fofe. 

vendee  entitled  to  all  vendor  can  convey,  203,  ^99. 

where  interest  of  vendor  incapable  of  ascertainment,  204,  507. 

partial  fulfilment  by  vendor  not  enforced,  205,  206. 

right  of  vendee  when  land  is  sold  by  corporation  without  authority, 
227. 

agreement  of  required  by  statute  of  frauds,  231,  ei  seq. 

light  of  purchaser  to  be  told  of  defects,  301. 

vendee  not  bound  to  communicate  his  knowledge  of  value  of  prop- 
erty, 302. 

when  misrepresentation  of  vendor  a  defence,  312. 

subsequent  purchaser  how  affected  by  voluntary  conveyance,  342. 

vendee  at  auction  sale  misled  by  vendor,  362. 

right  of  vendee  to  a  good  title,  409. 

duty  of  vendor  to  give  a  good  title,  410. 

purchaser  not  obliged  to  take  land  affected  with  a  judgment  lien, 
410. 

vendee  need  not  accept  a  doubtful  title,  411,  412. 

purchaser  has  a  right  to  a  good  equitable  as  v/ell  as  legal  title,  411, 
and  7iote. 

when  vendee  must  pay,  though  he  get  no  title,  424,  note. 

nature  of  relation,  425,  note. 

rule  as  to  default  in  respect  to  time,  436. 

tender  when  required,  and  when  sufficient,  438,  and  notes^  439,  440, 

443- 
right  of  party  upon  default  of  the  other,  442. 

vendee  not  required  to  pay  until  he  receives  his  conveyance,  444. 
default  of  purchaser  as  to  time  of  performance,  467. 
delay  of  vendor  to  make  title,  474. 
unexcused  delay  of  purchaser,  475. 
when  vendor  may  resell  property,  476. 
waiver  of  time  of  performance,  478,  479,  480,  483. 


INDEX.  797 

VENDOR  AND  VENDEE— Cmiinued. 

rule  in  relation  to  compensation,  499. 

when  vendor  not  held  to  strict  fulfilment,  502. 

return  to  vendee  of  his  advances  on  refusal  of  wife  to  convey,  511. 

liability  of  subsequent  purchaser  with  notice,  512. 

VOLUNTARY  CONVEYANCE, 

with  a  view  to  a  family  settlement,  40,  nofe. 
when  void  as  against  creditors,  341,  and  7W^e. 
how  subsequent  purchasers  affected  by,  342. 
VOLUNTARY    SETTLEMENT.      See   Family  Settlement,  Volun- 
tary Conveyance. 

WAGERING  CONTRACTS, 
illegality  of,  217. 

See  Gaming  Contracts. 

WAIVER, 

is  a  question  of  fact,  151,  fiofe. 
of  mutuality  in  contract,  202. 
of  fraud  in  contract  or  conveyance,  347. 
of  written  agreement  by  parol,  386. 
by  vendee  of  defect  of  title,  424. 

of  condition,  deprives  party  of  right  to  insist  on  forfeiture,  449, 
of  breach  of  contract  for  a  lease  does  not  take  away  defence  of  les- 
sor, 455. 
of  tinie  of  performance,  478,  479,  480. 
by  vendor  by  accepting  payment,  480,  nofe. 
by  extending  time  for  performance,  481. 
intention  to  insist  on  objection  negatived  by  conduct,  482. 
silent  acquiescence  in  delay,  483. 
by  surrendering  contract,  483,  uo^e. 
of  right  to  rescind  contract,  497. 
of  jurisdiction  of  court  to  decree  damages,  523. 

WAY, 

agreement  to  purchase  not  enforced  without  a  right  of,  169. 

WILL, 

contract  to  dispose  of  property  by,  41. 

a  will  in  writing  must  be  alleged,  89. 
interest  passed  by,  in  New  York,  150,  noU. 
title  depending  upon  the  construction  of,  412. 

WITNESS, 

contract  with,  illegal,  217,  note. 

WRIT  OF   NE  EXEAT.     See  Ne  Exeat. 


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